The 'True' Right to Trial by Jury: The Founders ...

Volume 111 Issue 3 Article 9

April 2009

The "True" Right to Trial by Jury: The Founders' Formulation and The "True" Right to Trial by Jury: The Founders' Formulation and

Its Demise Its Demise

John P. McClanahan University of North Carolina School of Law

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Recommended Citation Recommended Citation John P. McClanahan, The "True" Right to Trial by Jury: The Founders' Formulation and Its Demise, 111 W. Va. L. Rev. (2009). Available at: https://researchrepository.wvu.edu/wvlr/vol111/iss3/9

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THE 'TRUE' RIGHT TO TRIAL BY JURY: THEFOUNDERS' FORMULATION AND ITS DEMISE

Jon P. McClanahan*

1. IN TRODUCTION ................................................................................... 791II. THE BRITISH INFLUENCE ON THE EARLY AMERICAN RIGHT TO

T RIA L BY JURY .................................................................................... 796A. Historical Evolution of the Role of the Jury in Britain .......... 796B. Tension between Britain and Colonial America

Regarding Administration of Justice ..................................... 799III. FOUNDERS' CONCEPTION OF THE RIGHT TO TRIAL BY JURY ............. 803

A. Prevailing Theories on the Nature of the Right to Trial byJury ........................................................................................ 804

B. The Founders' Conception of the Right of the Jury toD ecide Issues of Law ............................................................. 808

IV. EROSION OF THE JURY'S RIGHT TO DECIDE ISSUES OF LAW IN

THE NINETEENTH CENTURY ............................................................... 813A. Early Recognition of the Right to Decide Issues of Law ........ 814B. Tracing the Rapid Demise of the Jury's Right to Decide

Issues of Law .......................................................................... 819V. AN INEVITABLE CONCLUSION? EVALUATING THE DEMISE OF

THE RIGHT OF THE JURY TO DECIDE ISSUES OF LAW IN LIGHT

OF FOUNDERS' CONCEPTION OF THE JURY ......................................... 824

I. INTRODUCTION

[S]hould the melancholy case arise that the judges should givetheir opinions to the jury against one of these fundamental [con-stitutional] principles, is a juror obliged to give his verdict gen-erally, according to this direction, or even to find the fact spe-cially, and submit the law to the court? Every man, of any feel-ing or conscience, will answer, no. It is not only his right, buthis duty, in that case, to find the verdict according to his ownbest understanding, judgment, and conscience, though in directopposition to the direction of the court.'

* Jon P. McClanahan, Judicial Clerk for the Honorable Roger L. Gregory, United States Courtof Appeals for the Fourth Circuit; Adjunct Professor, University of North Carolina School of Law.I thank Richard Myers for his invaluable advice and mentoring throughout the preparation of thisArticle.

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McClanahan: The "True" Right to Trial by Jury: The Founders' Formulation and

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To a reader who is untrained in American legal history, the above pas-sage might seem like it advocates a radical departure from the American legalsystem as it has existed throughout history. Indeed, one of the basic tenets ofthe modem jury system is that issues of law are reserved for the court, whileissues of fact are to be determined by the jury;2 that there should be jury reviewof the constitutionality of laws seems an almost unthinkable proposition today.Yet, this passage was taken from the diary of John Adams and was written in1771. 3 What happened to the Founders' conception of a powerful jury, poisedto decide not only questions of fact but also questions of law, and when calledon, to resist enforcing laws that they deemed to be unconstitutional?

The early American legal system was strongly influenced by its Britishancestry. Not only did the American legal system often directly adopt Britain'ssubstantive law and procedures,4 but it also developed its own legal constructsin response to what many colonists believed was oppressive British control.5 Inparticular, the trial of John Peter Zenger became a rallying cry for the Revolu-

6tion. Zenger, who was charged with seditious libel for publishing statementsthat were critical of British rule, was ultimately acquitted by a colonial jury,despite the fact that the jury was only to determine whether Zenger had pub-lished the statements and not whether the statements themselves were seditious.7

In response to the colonial juries' increasing refusal to convict colonists ofcrimes committed against the Crown, Britain eliminated the right to jury trials inparticular categories of cases or declared that the trials be conducted in England,thus denying colonists the right to trial by a jury of their peers.8 Given the Brit-ish interference with the colonial judicial system, it is no surprise that the Decla-

2 JOHN ADAms, THE WORKS OF JOHN ADAMS, SECOND PRESIDENT OF THE UNITED STATES:

WITH A LwE OF THE AUTHOR, NOTES AND ILLUSTRATIONS 254-55 (1850).2 James B. Thayer, "Law and Fact" in Jury Trials, 4 HARv. L. REv. 147, 147 (1890) (discuss-

ing the dichotomy between matters of law and fact). It is interesting to note that even though thisArticle was written in 1890, it adheres to this strict division of labor between the judge and jury,and dismisses any notion that the jury should decide questions of law not in accordance with thecourt's direction. See id. at 170.3 See 2 ADAMS, supra note 1, at 254-55.4 See ROSCOE POUND, CRIPMINAL JUSTICE IN AMERICA 77-116 (1930) (describing the devel-opment of British criminal law and its impact on the American colonies); Douglas G. Smith, TheHistorical and Constitutional Contexts of Jury Reform, 25 HOFSTRA L. REV. 377 (1996) (provid-ing detailed comparisons between the British and American jury systems).5 Albert W. Alschuler & Andrew G. Deiss, A Brief History of the Criminal Jury in the UnitedStates, 61 U. CHI. L. REv. 867, 871-75 (1994) [hereinafter Brief History] (describing the role ofthe jury in resisting British control through refusal to convict colonists accused of crimes againstthe Crown and the subsequent limiting of the types of cases that could be heard by a colonialjury).6 Andrew J. Parmenter, Note, Nullifying the Jury "The Judicial Oligarchy" Declares War on

Jury Nullification, 46 WASHBURN L.J. 379, 383 (2007).7 Id. at 383-84.8 Brief History, supra note 5, at 875.

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ration of Independence included among its grievances against King George Ithat he had "deprive[ed] us, in many cases, of the benefits of Trial by Jury." 9

The right to a jury trial, particularly in the case of criminal matters, con-tinued to be of central importance in the drafting of both the Constitution l andthe Bill of Rights." Furthermore, all twelve states that had adopted state consti-tutions prior to the Constitutional Convention included a right to jury trial incriminal matters as one of the rights granted to their citizens.' 2 Although theFounders considered the right to a jury trial to be of the utmost importance toAmerican citizens, there was little guidance provided on how the right to jurytrial should be implemented; consequently, there was much variation among thestates in a litigant's right to a jury trial and the role of the jury in decidingcases.' 3 Perhaps this omission was an intentional one, giving states the power toimplement the right to a jury trial in such a way that they deemed most appro-priate.1 4 Yet, if the right to a jury trial is to be an effective one and not a mereformalism, jurors must be given a minimum amount of power over decidingparticular types of cases.' 5 By examining the statements of the Founders andtheir contemporaries around the time of the drafting of the Constitution, one canbegin to get a sense of the different functions that were to be carried out by thejury, as a protector of the people against overreaching by the government,' 6 as aparticipant in the democratic process, 17 and as a central figure in the administra-

9 THE DECLARATION OF INDEPENDENCE para. 20 (U.S. 1776); see also Brief History, supranote 5, at 875 (suggesting the connection between the fight of the British and American colonistsover the role of jury and the inclusion of the deprivation of the right to trial by jury among thegrievances in the Declaration of Independence).10 See U.S. CONST. art. III, § 2, cl. 3 ("The Trial of all Crimes, except in Cases of Impeach-

ment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall havebeen committed; but when not committed within any State, the Trial shall be at such Place orPlaces as the Congress may by Law have directed."); see also Note, The Changing Role of theJury in the Nineteenth Century, 74 YALE L.J. 170, 171 (1964) [hereinafter Changing Role] (indi-cating colonial opposition to the Federal Constitution because of its failure to guarantee the rightto trial by jury in civil matters).1 See AKHIL REED AMAR, THE BILL OF RIGHTS 83 (1998) [hereinafter AMAR'S BILL OFRIGHTS] ("Indeed, the entire debate at the Philadelphia convention over whether to add a Bill ofRights was triggered when George Mason picked up on a casual comment from another delegatethat 'no provision was yet made for juries in Civil cases."' (quoting 2 THE RECORDS OF THEFEDERAL CONVENTION OF 1787 587 (Max Farrand ed., Yale Univ. Press 1937) (1787))); see alsoAKHIL REED AMAR, AMERICA'S CONSTITUTION 233-35 (2005) [hereinafter AMAR'S AMERICA'SCONsTrruTiON] (discussing the debate between the Federalists and Anti-Federalists over the fail-ure to guarantee the right to jury trial for civil cases in the Constitution, prompting the swift pas-sage of the Seventh Amendment).12 Leonard W. Levy, Bill of Rights, in ESSAYS ON THE MAKING OF THE CONsTrruTION 258, 269

(Leonard W. Levy ed., 2d ed. 1987).13 Smith, supra note 4, at 422.14 See THE FEDERALIST No. 83 (Alexander Hamilton).

15 See Parmenter, supra note 6, at 384.

16 AMAR'S BILL OF RIGHTS, supra note 11, at 83.

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tion of justice.' 8 The right of the jury to decide questions of both law and factcomports with these goals, and indeed the jury's right to decide questions of lawin criminal cases was widely accepted around the country from the time of thepassage of the Constitution until the middle of the 1800s.19 In 1794, the UnitedStates Supreme Court even acknowledged the power of juries to decide ques-tions of law when it presided over the jury trial in Georgia v. Brailsford, explic-itly including such language in its instructions to the jury.2°

While the jury's right to decide questions of law was commonly ac-cepted at this time, the right to jury review was not so favorably looked upon bythe courts, when that right was explicitly considered at all.2' Nevertheless, somecourts did allow defense counsel to argue the unconstitutionality of a law to thejury, confirming the view shared by some scholars that the jury was vested withthe right to refuse to follow a law if the law were deemed by the jury to be un-constitutional.22 While this concept is often conflated with the modem notion ofjury nullification, this right of jury review should be considered as distinct fromjury nullification, since the right to jury review would enable jurors to refuse tofollow a law if they found the law to be unconstitutional, while the latter wouldenable them to refuse to follow a law if they found the law or application of thelaw to be unjust.23

With the passage of time, mounting opposition arose to the recognitionof a jury's right to decide issues of law.24 While this opposition was by nomeans uniform across the country,25 the gradual denial of this right continueduntil 1895, at which time the Supreme Court's decision in Sparfv. United Stateseffectively turned any hope for the right of the jury to decide issues of law into a

17 Id. at 94.18 Id. at 96.19 Robert D. Rucker, The Right to Ignore the Law: Constitutional Entitlement Versus JudicialInterpretation, 33 VAL. U. L. REv. 449,453-54 (1999).20 Georgia v. Brailsford, 3 U.S. (3 Dali.) 1, 3 (1794) (instructing the jury on its right to decide

questions of law as well as fact, even though acknowledging a court's better position in decidingthe law); see also Smith, supra note 4, at 449 (describing the jury instructions in Brailsford).21 See David A. Pepper, Nullifying History: Modem-Day Misuse of the Right to Decide the

Law, 50 CASE W. RES. L. REv. 599, 626-27 (2000) (arguing that jury review was uniformly de-nied by federal courts).22 Gerard N. Magliocca, The Philosopher's Stone: Dualist Democracy and the Jury, 69 U.

COLO. L. REv. 175, 195-96 (1998).23 AMAR'S BELL OF RIGHTS, supra note 11, at 98 & n.64 (distinguishing between jury reviewand jury nullification).24 See Changing Role, supra note 10 (detailing the progressive denial of the jury's right to

decide issues of law in Massachusetts as an example of such changes throughout the country);Mark DeWolfe Howe, Juries as Judges of Criminal Law, 52 HARv. L. REv. 582 (1939) (describ-ing the prevalence of the right of the jury to decide questions of law in the early 1800s and theweakening of the right in various parts of the country).25 See Smith, supra note 4, at 452 (indicating that as late as 1851, fifteen states acknowledgedthe jury's right to decide issues of law by constitution, statute, or judicial decision).

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26dead letter. The great divide between judges deciding issues of law and juriesdeciding issues of fact was complete, and scholars tried to reconcile inconsistentprecedent and statements to the contrary.27

This Article argues that the Founders' conception of a strong, independ-ent jury necessarily included the right of the jury to decide issues of law andfact, as well as the related right to refuse to apply laws it deemed to be unconsti-tutional. During the course of the nineteenth century, the ideals of an activejury, involved in the administration of justice, poised to defend against govern-mental overreaching, was replaced with the conception of a passive jury thatwas only asked to dutifully decide disputed issues of fact. Justifications givenby legal scholars for this shift in practice, while appealing facially, are premisedon an idea that this shift was an inevitable response to the social changes in thenineteenth century,28 but fail to fully acknowledge that the shift in practice itselfmight have contributed to the failure to achieve the Founders' ideals of the jury.It is important to note at the outset that this Article is intended to be primarilydescriptive in nature, detailing the role of the jury from the colonial Americanera until the end of the nineteenth century. This Article does not purport to ex-plore the normative question of whether the modem jury should have theseroles, leaving this topic for a subsequent article. Nevertheless, if one believesthat the Founders' conception of the jury should influence its modem formula-tion, this Article will help inform that discourse.

Part II of this Article briefly describes the evolution of the role of thejury in Britain and its impact on the conception of the jury in colonial America,focusing primarily on the right of the jury to decide issues of law. Moreover,Part HI examines the tension between Britain and colonial America concerningthe administration of justice, and how this tension helped shape the Founders'vision of the jury. Part Il of this Article examines the conception of the juryaround the time of the enactment of the Constitution and Bill of Rights throughstatements of the Founding Fathers and other contemporaries, in order to de-velop an understanding of the different ideological roles that were to be fulfilledby an inclusion of the right to a jury trial. In addition, Part III will examine howthe jury's right to decide issues of law and jury review fit within this ideologicalframework., Part IV of this Article traces the erosion of the jury's right to decideissues of law during the nineteenth century. This Article concludes by exploring

26 See Sparf v. United States, 156 U.S. 51, 102 (1895). For a more detailed review of the

Sparf case and criticism of its legal conclusions, see generally Donald M. Middlebrooks, RevivingThomas Jefferson's Jury: Sparf and Hanson v. United States Reconsidered, 46 AM. J. LEGAL HIST.353 (2004).27 See, e.g., Thayer, supra note 2, at 170-72 (attempting to reconcile the language of Georgia

v. Brailsford with the division of labor between the judge and jury by providing limited exceptionsto the rule governing the division of labor). But see Howe, supra note 24, at 583-84 (suggestingthat Thayer's vision of the division of labor between judge and jury does not comport with theactual practices in the 1800s).28 See, e.g., Howe, supra note 24, at 614-16; Brief History, supra note 5, at 915-20; Pepper,

supra note 21, at 639-40; Middlebrooks, supra note 26, at 408.

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proposed justifications for this erosion, but ultimately finds that such justifica-tions are inconsistent with the Founders' conception of the jury.

EI. THE BRITISH INFLUENCE ON THE EARLY AMERICAN RIGHT TO TRIAL BY

JURY

This Part discusses the relationship between judges and juries in Britain,and in particular the tight control that judges traditionally exercised over judicialproceedings and jury verdicts. By the seventeenth century, British judges ex-erted considerably less control over juries. While the legal system in colonialAmerica was influenced by the growing independence of juries in Britain, itwent even further in giving juries the power to decide issues of law, independentfrom judges.

A. Historical Evolution of the Role of the Jury in Britain

A comprehensive treatment of the British jury system is beyond thescope of this Article;29 consequently, this Article will focus on the right of theBritish jury to decide issues of law, as well as the evolution of judicial controlover the jury in reaching verdicts. Traditionally, there was a sharp division be-tween the judge deciding issues of law and the jury deciding issues of fact.Moreover, the judge had coercive measures at his disposal to ensure that thejury's verdict was consistent with his wishes. Over time, however, Britishcourts began to recognize the need for an independent jury, which through therendering of a general verdict could decide issues of law.3°

British common-law courts traditionally adhered to a distinct division oflabor between judges deciding issues of law and juries determining issues offact,31 similar to that found in modem-day American courts. According to thewords of the British legal scholar Sir Edward Coke, "The most usual triall ofmatters of fact is by twelve such men; for ad quaestionemfacti non respondentjudices; and matters in law the judges ought to decide and discusse; for adquaestionem juris non respondent juratores."32 While Coke's statement accu-rately described the general rule, there were exceptions, the most famous ofwhich appeared in the trials of John Lilburne.33 During his 1649 trial on chargesof treason for publishing anti-government pamphlets, Lilbume asked the court

29 For a detailed description of the British jury system, see generally Smith, supra note 4.

30 See id. at 416.

31 See Thayer, supra note 2, at 149.

32 SIR EDWARD COKE, THE FIRST PART OF THE INSTITUTES OF THE LAWES OF ENGLAND, OR, A

COMMENTARY UPON LITTLETON 155b (18th ed. 1823).33 See Steven M. Fernandes, Comment, Jury Nullification and Tort Reform in California:Eviscerating the Power of the Civil Jury by Keeping Citizens Ignorant of the Law, 27 Sw. U. L.REV. 99, 100-05 (1997).

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to allow him to address the jury on issues of both law and fact. 4 In response,the judge stated, "Master Lilbume quietly express yourself, and you do well; thejury are judges of matter of fact altogether, and Judge Coke says so: But I tellyou the opinion of the Court, they are not judges of matter of law."35 Althoughhe was formally denied the opportunity to argue issues of law to the jury, Lil-bume continued to advocate his right to do so in his closing statement, and ulti-mately he was found to be not guilty on the charge of treason.36 In 1653, Lil-burne faced a second trial, and again he advocated the jury's role in decidingissues of law.37 In this trial, Lilbume went further, "invok[ing] the jury as ashield, adjuring them to reject 'void' law and to act on behalf of the people,whose powers of delegation of authority to true representatives had been wrong-fully usurped., 38 In its acquittal of Lilbume, the jury found that Lilbume was"not guilty of any crime worthy of death., 39

A closer inspection of Lilburne's writings and statements during his tri-als reveal that Lilbume was arguing for more than just a version of jury nullifi-cation as it is conceived in modem legal scholarship; instead, he was advocatingfor the jury to decide pure issues of law as a judge and even engage in a type ofjury review.4° In the 1649 trial, he advocated that the jury should be able to findthat the statute was "null and void under the true law of England.'"' Further-more, in the 1653 trial, he argued that the jury should be able to assess whethera recently enacted statute was not in accordance with "due process" because thestatute imposed sanctions that did not previously exist under the common law.42

Beyond modem notions of failing to apply an unjust law, Lilbume was advocat-ing a juror role similar to that of a judge, vested with the right to decide purelylegal issues as well as the right to decide whether a statute was repugnant toBritain's unwritten constitution.43

In the British courts, judicial control over the proceeding and the jurywas initially quite strong, with the judge taking an inquisitorial role in question-ing the witnesses and "compel[ling] jurors to reconsider decisions with which hedid not agree."44 As time went on, direct methods of compelling jurors to re-

34 Id. at 100-0 1.

35 THOMAS ANDREw GREEN, VERDICT ACCORDING TO CONSCIENCE 173 (1985).36 Id.; Pepper, supra note 21, at 611; see Parmenter, supra note 6, at 381.

37 Fernandes, supra note 33, at 102.

38 GREEN, supra note 35, at 197-98.

39 id. at 197.40 See Pepper, supra note 21, at 611 (exploring what Lilburne meant when he stated that thejury should decide issues of law). Unlike this Article, the author uses Lilburne's statements in thecontext of jury nullification. See id.41 GREEN, supra note 35, at 195.42 Id. at 196.43 Pepper, supra note 21, at 611.44 Stephan Landsman, The Rise of the Contentious Spirit: Adversary Procedure in EighteenthCentury England, 75 CORNELL L. REv. 497, 505-06 (1990); see Smith, supra note 4, at 406-07.

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consider decisions were replaced with indirect, yet arguably equally coercivemeasures. 45 Due to the fact that jurors were traditionally considered to be wit-nesses by the British courts, jurors could be found guilty of perjury for reachinga "false" verdict.46 Through the writ of attaint, the court would impanel a newjury to review the verdict, and if the second jury found the verdict to be incor-rect, "the members of the first jury were subject to imprisonment, forfeiture oflands and chattels, and denial of credit to borrow money. 47

The coercive tactics of the judiciary towards the jury were limited as aresult of Bushell's Case, decided in 1670.48 Edward Bushell was a member ofthe jury in the prosecution of Quakers William Penn and William Mead oncharges of preaching to an unlawful assembly and breach of the peace.49 Aftertwice refusing to follow the instructions of the court, which had instructed thejury to return a guilty verdict on all charges, "[tihe judge admonished the jury,threatening not to release them until they returned an acceptable verdict: 'youshall be locked up, without meat, drink, fire, and tobacco ... we will have averdict, by the help of God, or you shall starve for it. ' ' 50 In fact, the judge de-tained the jury for two days without food, water, and heat, yet the jury did notwaiver in its decision.51 As a result of the jury's refusal to return a guilty ver-dict, the judge imposed a fine on the jurors and imprisoned those who refused topay the fine, including Bushell.52 Bushell filed a habeas corpus petition, andChief Justice Vaughan declared in Bushell's Case that judges could not fine orimprison jurors for rendering a verdict with which the judge did not agree.53 Itis interesting to note that Vaughan's reasoning was not based on the idea thatthe jury had the right to decide issues of law; in fact, the opinion stated that ajuror is obligated to follow the law laid down by the judge.54 Nevertheless, the"case established the independence of the English jury and cemented its position

45 See Robert Wilson, Free Speech v. Trial by Jury: The Role of the Jury in the Application ofthe Pickering Test, 18 GEO. MASON U. Civ. RTS. L.J. 389, 394-95 (2008).46 Id.47 Id. at 395; see also James B. Thayer, The Jury and Its Development: III, 5 HARV. L. REv.357, 364 (1892) (describing the procedure for the writ of attaint in further detail).48 Bushell's Case, 124 Eng. Rep. 1006 (1670), available at http://www.constitution.org

/trials/bushell/bushell.htm.49 Parmenter, supra note 6, at 381.50 Id. (quoting Trial of Penn and Mead, in 6 COBBETr'S COMPLETE COLLECTION OF STATE

TRIALS 951, 963 (1810)).51 Id.52 Smith, supra note 4, at 408.

53 Id.; The Civil Jury, 110 HARV. L. REv. 1408, 1417 (1997); Parmenter, supra note 6, at 382.54 See Simon Stem, Note, Between Local Knowledge and National Politics: Debating Ration-ales for Jury Nullification After Bushell's Case, 111 YALE L.J. 1815, 1815-16 (2002). But seeParmenter, supra note 6, at 382 (finding that "Vaughan declared that the jury determines the lawin all matters decided by a general verdict.").

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as a guarantor of liberty in the face of state oppression. ' '55 Despite Vaughan'slanguage to the contrary, the case was soon viewed as generally supporting ajury's right to decide both issues of law and fact.56

In addition to a few prominent cases where British courts considered theright of the jury to decide issues of law and the related power of courts to coercejurors to issue particular verdicts, the very nature of a general verdict itself ar-guably gave juries a "de facto power" to decide issues of law.57 Although Brit-ish courts could minimize the effect of enabling juries to decide issues of lawthrough procedural devices such as the special pleading and the special ver-dict,58 when such procedural devices were not employed, juries could effectivelydecide issues of law through a general verdict. Moreover, after the decision inBushell's Case, such verdicts could be made without fear of retribution by thecourt.5 9

While British juries clearly did not have a recognized right to decide is-sues of law, by the seventeenth century they had gained more freedom to decidecases in accordance with their own views of the law, independent from that ofjudges.

B. Tension between Britain and Colonial America Regarding Administra-tion of Justice

As the struggle between Britain and colonial America escalated in thetime leading up to the Revolution, colonial juries played a vital role in mountingopposition to oppressive British control.60 Not only were colonial Americanjurors free of the extreme coercive judicial tactics that were once practiced inBritain due to the result in Bushell's Case, but the colonies accorded judgeseven less control over jurors than did their British counterparts. 61 Among thegreater powers given to colonial juries, the courts allowed lawyers to argue thevalidity of laws to juries.62 Colonial juries, equipped with this relatively un-checked power to render general verdicts, refused to convict defendants accused

55 Smith, supra note 4, at 408; see also Matthew P. Harrington, The Law-Finding Function ofthe American Jury, 1999 Wis. L. REv. 377, 384 (1999) (discussing the impact of Bushell's Caseon the independence of the jury and the jury's role as a defender against governmental abuses).56 Stem, supra note 54, at 1816.

57 Smith, supra note 4, at 416 (emphasis added).58 See William E. Nelson, The Eighteenth-Century Background of John Marshall's Constitu-tional Jurisprudence, 76 MICH. L. REv. 893, 905-06 (1978) (describing some of the proceduresused in Britain that were not extensively used in the American colonies in the mid-eighteenthcentury).59 Smith, supra note 4, at 408.60 Bradley J. Huestis, Jury Nullification: Calling for Candor from the Bench and Bar, 173MiL. L. REv. 68, 74 (2002); see also Brief History, supra note 5, at 871.61 See Smith, supra note 4, at 439-41.62 Huestis, supra note 60, at 74.

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of violating British laws, in particular those involving seditious libel 63 and traderestrictions. 64 As an example of the colonial jury's influence on the administra-tion of justice, in 1768 John Hancock refused to allow British customs inspec-tors aboard his ship, in clear violation of a statute requiring such access. 65 How-ever, the attorney general thought it futile to prosecute the case because a colo-nial jury would refuse to indict or convict Hancock.66 One of the governors ofMassachusetts lamented that "a trial by jury here is only trying one illicit traderby his fellows, or at least by his well-wishers. ' 67

Undoubtedly, the most celebrated and influential case of a colonial juryrefusing to convict an accused despite the weight of evidence was that of JohnPeter Zenger, a printer who was charged with seditious libel for criticizing thegovernor of New York.68 Initially, the judge charged three separate grand juriesto indict Zenger for seditious libel, but all refused to do so; consequently, Zen-ger was charged by information. 69 When Zenger's original lawyers objected tothe chief justice presiding over the trial on grounds of lack of independencesince his service was at the will of the Crown, the chief justice not only refusedto disqualify himself but also had the lawyers disbarred.70 Under the then-prevailing rules governing seditious libel prosecutions, the jury was not to de-termine whether a publication was libelous, for that was deemed a question oflaw to be decided by the court. 1 Instead, the jury was only to determinewhether the defendant had published the materials that were the subject of thecharge.72 Furthermore, truth was not considered a defense to a libel prosecu-

63 See Brief History, supra note 5, at 874 ("Hundreds of defendants were convicted of [sedi-

tious libel] in England during the seventeenth and eighteenth centuries, but there seem to havebeen no more than a half-dozen prosecutions and only two convictions in America throughout thecolonial period.").64 See Robert E. Korroch & Michael J. Davidson, Jury Nullification: A Call for Justice or anInvitation to Anarchy?, 139 MIL. L. REV. 131, 134 (1993) (noting that colonial juries refused toconvict defendants for violating navigation acts that were created to ensure that trade flowedthrough Britain).65 Huestis, supra note 60, at 74-75.

66 Id. at 75.67 STEPHEN BOTEIN, EARLY AMERICAN LAW AND SOCIETY 57 (1983) (quoting Governor Wil-

liam Shirley).68 Brief History, supra note 5, at 871; Jack B. Weinstein, The Power and Duty of Federal

Judges to Marshall and Comment on the Evidence in Jury Trials and Some Suggestions on Charg-ing Juries, 118 F.R.D. 161, 164 (1988). For a more detailed account of the Zenger case, seegenerally Famous American Trials, John Peter Zenger Trial 1735, http://www.law.umkc.edu/faculty/projects/ftrials/zenger/zenger.html (last visited Feb. 28, 2009).69 Harrington, supra note 55, at 393.70 Brief History, supra note 5, at 872.71 Pepper, supra note 21, at 614.72 Parmenter, supra note 6, at 383.

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tion.73 Andrew Hamilton, Zenger's attorney, conceded that Zenger had pub-lished the materials in question, but he nevertheless maintained that the juryshould determine whether the materials were libelous; 74 central to Hamilton'sargument was that the jury had a right to determine the law.75 The chief justicedisagreed with Hamilton, and the following exchange ensued:

Chief Justice: "[T]he jury may find that Zenger printed andpublished those papers, and leave it to the Court to judgewhether they are libelous; you know this is very common; it isin the nature of a special verdict, where the jury leave the matterof law to the Court."

Hamilton: "I know ... the jury may do so; but I do likewiseknow they may do otherwise. I know they have the right beyondall dispute to determine both the law and the fact, and wherethey do not doubt of the law, they ought to do so .... [L]eavingit to the judgment of the Court whether the words are libelousor not in effect renders juries useless. ,76

Hamilton, citing Bushell's Case as precedent, posited that "it is veryplain that the jury are by law at liberty ... to find both the law and the fact inour case." 77 Hamilton argued for more jury involvement to combat a "wide-spread fear" that a judge's already vast powers were incompatible with a judgealso having the sole power to interpret laws.78 Although the judge did not agreewith Hamilton's contentions, he did allow the jurors to return a general verdict,and Zenger was acquitted. 79 An account of the Zenger trial was widely pub-lished throughout the colonies, and it "became the American primer on the roleand duties of jurors.' 80

The Zenger trial has often been cited by scholars as a prime example ofthe colonial jury's resistance to unpopular prosecutions by the British-controlled

73 Pepper, supra note 21, at 614; see also Brief History, supra note 5, at 873 ("The well-established rule was: The greater the truth, the greater the libel.").74 Brief History, supra note 5, at 873.75 Pepper, supra note 21, at 615.76 Brief History, supra note 5, at 873 (quoting JAMES ALEXANDER, A BRIEF NARRATIVE OF THE

CASE AND TRIAL OF JOHN PETER ZENGER, PRINTER OF THE NEW YORK WEEKLY JOURNAL 78 (Stan-ley Katz ed., 1963)) (alteration and emphasis in original).77 JAMES ALEXANDER, A BRIEF NARRATIVE OF THE CASE AND TRIAL OF JOHN PETER ZENGER,

PRINTER OF THE NEW YORK WEEKLY JOURNAL 92 (Stanley Katz ed., 2d ed. 1972); accord Huestis,supra note 60, at 74.78 Pepper, supra note 21, at 615.

79 Brief History, supra note 5, at 873.8o Id. at 874.

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government, 81 and indeed it is such a case. Proponents of jury nullification haverelied upon the Zenger case as support for the practice in colonial times, and thetwo have almost become synonymous with each other.82 Taking a closer look atHamilton's arguments, however, reveals that his arguments for the jury decidingissues of law were broader than merely advocating the jury's right to refuse touphold an unjust law.83 In particular, he argued to the jury that the court hadmisinterpreted the elements of libel in the common law by failing to allow thetruth of the publication as a defense to the claim, using prior precedent and leg-islation in support of this contention. 4 Hamilton also made policy arguments tothe jury against the judge's interpretation of the elements of libel.85 Finally, hecalled upon the jury to consider inherent legal rights accorded to colonialAmericans, stating that "[the] nature and the laws of our country have given us aright-the liberty-both of exposing and opposing arbitrary power .. .byspeaking and writing truth., 86 Taken together, Hamilton's arguments to the jurywere similar to that which would be made to a judge faced with making a purelylegal interpretation of the elements of a crime--considering the common lawand past precedent, statutes that concern the subject, and public policy argu-ments in favor of a particular interpretation. In addition, even though this casepredated the Revolution and subsequent adoption of the Constitution, Hamil-ton's statement regarding the inherent liberty of colonists to oppose governmen-tal power through truthful language can be seen as a precursor to argumentsregarding the constitutionality of the law of seditious libel. Consequently, Ham-ilton's statements could be read to advocate not only the jury deciding issues oflaw, but also a rudimentary type of jury review.

Faced with increasingly hostile colonial juries, the British governmentresponded by limiting their ability to hear contentious cases.87 First, the Britishexpanded the jurisdiction of admiralty courts, which did not have juries, to al-low the courts to hear cases involving revenue owed to the British.88 Under the

81 See, e.g., AMAR's BILL OF RIGHTS, supra note 11, at 84 (citing Zenger for the proposition

that "[c]olonial grand juries flexed their muscles to resist unpopular prosecutions."); Magliocca,supra note 22, at 191 ("[T]he Zenger trial was but the first example of jury resistance to Imperialauthority, and soon revolutionary activists adapted [sic] colonial practice to fulfill the jury's poten-tial as a mobilizer of constitutional change.").82 See, e.g., Huestis, supra note 60, at 74 (describing the Zenger trial as one of the most fa-

mous trials of jury nullification); Parmenter, supra note 6, at 383-84 (indicating that the Zengertrial popularized jury nullification in the time leading up to the Revolution); John T. Reed, Com-ment, Penn, Zenger and O.J.: Jury Nullification-Justice or the "Wacko-Fringe's" Attempt toFurther its Anti-Government Agenda?, 34 DUQ. L. REv. 1125, 1132 (1996) (citing Zenger as anexample of jury nullification of oppressive colonial laws).83 See Pepper, supra note 21, at 615-17.

84 See id. at 616.85 Id.

96 ALEXANDER, supra note 77, at 99; Pepper, supra note 21, at 616.87 See Brief History, supra note 5, at 875; Harrington, supra note 55, at 394-96.

88 Brief History, supra note 5, at 875.

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Administration of Justice Act of 1774, English officials charged with crimescould be tried in England instead of the colonies, where they would have un-doubtedly faced more hostile juries. 89 In addition, Parliament stated that colo-nists accused of treason would be tried in Britain instead of in America, effec-tively denying the accused the right to be tried by a jury of his peers.a° EdmundBurke, a member of the House of Commons yet sympathetic towards the Amer-ican colonies, described the unjustness of this practice: "[Birought hither in thedungeon of a ship's hold ... he is vomited into a dungeon on land, loaded withirons, unfurnished with money, unsupported by friends, three thousand milesfrom all means of calling upon or confronting evidence . ... 91 Not surpris-ingly, the attempts by the British to limit the role of the jury only escalated thetensions between the British and the colonists,92 and these actions greatly con-tributed to the desire to fight for colonial independence.93

Thus, juries in colonial America had even more power than their Britishcounterparts to render verdicts in accordance with their own views of the law.Colonial jurists sometimes used this power to rebel against oppressive Britishcontrol, with the Zenger trial being the most notable example. British attemptsto curtail this power only heightened the already considerable tension betweenthemselves and the colonists, and it ultimately played a part in the Americanrevolution.

1II. FOUNDERS' CONCEPTION OF THE RIGHT TO TRIAL BY JURY

This part analyzes the right to trial by jury as it was envisioned by theFounders. In particular, the Founders staunchly believed that juries played anessential role in the success of a democracy, by protecting against governmentaloverreaching, by enabling citizens to participate in the democratic process, andby operating as a central figure in the administration of justice. The right todecide issues of law and the related right to decide the constitutionality of lawsfit in with the Founders' conception of the jury, as evidenced by the writings ofthe Founders and the actual practices at that time.

89 Harrington, supra note 55, at 394.90 See id. at 394.91 2 EDMUND BURKE, Letter to the Sheriffs of Bristol, in THE WORKS OF THE RIGHTHONORABLE EDMUND BURKE 189, 192 (9th ed. 1889).92 Harrington, supra note 55, at 395-96.93 See THE DECLARATION OF INDEPENDENCE para. 20-21 (U.S. 1776) (listing among the griev-ances against King George III "depriving us in many cases, of the benefits of Trial by Jury" and"transporting us beyond Seas to be tried for pretended offences."); see also Smith, supra note 4, at424 (describing several actions leading up to the Declaration of Independence that indicated colo-nists' anger over the deprivation of the right to trial by jury).

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A. Prevailing Theories on the Nature of the Right to Trial by Jury

The right to trial by jury held a central place in the Founding Fathers'vision of an ideal democratic society, with the right to trial by jury in criminalcases protected by the Constitution 94 and Sixth Amendment, 95 and the right totrial by jury in civil cases protected by the Seventh Amendment.96 During theConstitutional Convention, the protection of the right to trial by jury had wide-spread support among both Federalists and Anti-Federalists, as evidenced byAlexander Hamilton in Federalist 83:

The friends and adversaries of the plan of the [Constitutional][C]onvention, if they agree in nothing else, concur at least in thevalue they set upon the trial by jury; or if there is any differencebetween them it consists of this: the former regard it as a valu-able safeguard to liberty; the latter represent it as the very palla-dium of free government. 97

Elbridge Gerry, a staunch advocate of jury rights, declared that "the jurywas 'adapted to the investigation of truth beyond any other [system] the worldcan produce.'98

Given the great importance the Founders put on securing the right totrial by jury, it might seem odd that the specifics of the right were not well de-lineated in the Constitution or in the Bill of Rights,99 and indeed the implemen-tation of the right varied throughout the country.'0° Such flexibility may wellhave been by design; according to Alexander Hamilton, "It would be extremelydifficult, if not impossible, to suggest any general regulation [on the right to trial

94 U.S. CONST. art. HI, § 2, cl. 3 ("The Trial of all Crimes, except in Cases of Impeachment;shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have beencommitted....").95 U.S. CONST. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right to aspeedy and public trial, by an impartial jury of the State and district wherein the crime shall havebeen committed .... ).96 U.S. CONST. amend. VII ("In suits at common law, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shallbe otherwise reexamined in any Court of the United States, than according to the rules of thecommon law.").97 THE FEDERALIST No. 83 (Alexander Hamilton); see also Brief History, supra note 5, at 871.But see Harrington, supra note 55, at 398-99 (suggesting that the Founders may have becomewary of the power of the jury).98 Changing Role, supra note 10, at 171-72 (quoting Elbridge Gerry, Observations on the New

Constitution, in 2 THE FEDERALIST AND OTHER CONsTrruTIONAL PAPERS 714, 720 (E.H. Scott ed.,1894)).99 See U.S. CONST. amend. VII; U.S. CONST. amend VI; U.S. CONST. art. HI, § 2, cl. 3; THEDECLARATION OF INDEPENDENCE para. 20-21 (U.S. 1776).100 Howe, supra note24, at 596-98 and nn.57-58.

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by jury] that would be acceptable to all the States in the Union, or that wouldperfectly quadrate with the several State institutions." 101 Nevertheless, if a juryis to be a "safeguard to liberty" or the "palladium of free government" as theFounders so intended,' °2 one must endeavor to understand the Founders' con-ception of the jury, so that the jury is equipped with the powers necessary tocarry out this vision. Among the most important functions of the jury are asprotector against government overreaching, as an essential participant in democ-racy, and as a central figure in the judicial system. 103

Given the prominent role of juries in colonial America in cases such asthe trial of John Peter Zenger and other instances in which juries used theirpowers of indictment and rendering verdicts to rebel against British control, theFounders conceived of the jury as a "bulwark against the unjust use of govern-mental power." 1°4 Writings and statements by the Founders and their contempo-raries provide the best evidence of how wide-spread this conception of the jurywas among the Founders, irrespective of other political differences. AlexanderHamilton, a leading Federalist, wrote that "[alrbitrary impeachments, arbitrarymethods of prosecuting pretended offenses, and arbitrary punishments uponarbitrary convictions, have ever appeared to me to be the great engines ofjudicial despotism" and that the right to trial by jury in criminal cases operatesas a check on these arbitrary government actions. 10 5 In response to complaintsthat the then-proposed Constitution did not contain provisions protecting theright to jury trial in civil cases, Theophilus Parsons, a Federalist, stated that

[t]he people themselves have it in their power effectually to re-sist usurpation, without being driven to an appeal to arms. Anact of usurpation is not obligatory; it is not law; and any manmay be justified in his resistance. Let him be considered as acriminal by the general government; yet only his fellow citizenscan convict him; They are his jury, and if they pronounce himinnocent, not all the powers of congress can hurt him; and inno-cent they certainly will pronounce him, if the supposed law heresisted was an act of usurpation.' 6

The Anti-Federalists were likewise concerned about the abuses of gov-ernmental power, and even moreso than the Federalists, they advocated for more

101 THIE FEDERALIST No. 83 (Alexander Hamilton).102 See id.

103 See generally AMAR'S BILL OF RIGHTS, supra note 11, at 83-110 (describing the multi-

faceted roles of the jury in early America).i4 Changing Role, supra note 10, at 172; see also PouND, supra note 4, at 115; discussion

supra Part H.B.105 THE FEDERALIST No. 83 (Alexander Hamilton).106 Sparf v. United States, 156 U.S. 51, 144 (1895) (Gray, J., dissenting) (quoting 2 ELLIOT'S

DEBATES (Deb. 94)).

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explicit protections of the jury in the Constitution.' °7 According to an Anti-Federalist pamphlet, "[j]udges, unincumbered [sic] by juries, have been everfound much better friends to government than to the people. Such judges willalways be more desirable than juries to... those who wish to enslave the people.... 9108 The Anti-Federalists felt so strongly about the jury's protective rolethat they threatened to block ratification of the Constitution if the right was notexpressly included. 1°9 Summing up his personal views on the meaning of theright to trial by jury, Thomas Jefferson declared that "I consider [trial by jury] asthe only anchor yet imagined by man, by which a government can be held to theprinciples of its constitution."'110

In addition to the Founders' conception of the jury as a protector againstgovernment oppression, the jury was viewed more generally as an outlet forparticipation in the fledgling democratic government."' Again, the words of theFounders themselves provide the best insight into this role. Thomas Jefferson,considering the citizens' participation in government, wrote that "[w]ere I calledupon to decide whether the people had best be omitted in the Legislative or Ju-diciary department, I would say it is better to leave them out of the Legisla-tive. ' 12 According to Herbert J. Storing, a historian of Anti-Federalists, "Thequestion was not fundamentally whether the lack of an adequate provision forjury trial would weaken a traditional bulwark of individual rights (although thatwas also involved), but whether it would fatally weaken the role of the people in

107 See Alan Howard Scheiner, Note, Judicial Assessment of Punitive Damages, the Seventh

Amendment, and the Politics of Jury Power, 91 COLUM. L. REv. 142, 146-50 (1991).108 Essays of An Old Whig (VIII), in 3 THE COMPLETE ANTI-FEDERALIST 49 (Herbert J. Storing

ed., University of Chicago Press 1981).109 Jeffrey R. White, State Farm and Punitive Damages: Call the Jury Back, 5 J. HIGH TECH. L.79 (2005). William Blackstone, a contemporary of the Anti-Federalists, wrote that

[t]he impartial administration of justice, which secures both our persons andour properties, is the great end of civil society. But if that be entirely entrustedto the magistracy, a select body of men, and those generally selected by theprince or such as enjoy the highest offices in the state, their decisions, inspight [sic] of their own natural integrity, will have frequently an involuntarybias toward those of their own rank and dignity : it is not to be expected fromhuman nature that the few should always be attentive to the interests and goodof the many.

3 WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 379 (16th ed. 1825); seeWhite, supra at 134.110 3 THOMAS JEFFERSON, THE WRITINGS OF THOMAS JEFFERSON 71 (H.A. Washington ed.,Taylor & Maury 1853); see William V. Dorsaneo, II, Reexamining the Right to Trial by Jury, 54SMU L. REv. 1695, 1696 (2001).II See AMAR'S BILL OF RIGHTS, supra note 11, at 94.112 Letter from Thomas Jefferson to Abbd Arnoux (July 19, 1789), in 15 THE PAPERS OF

THOMAS JEFFERSON 282, 283 (Julian P. Boyd ed., 1958). John Adams echoed Jefferson's senti-ment that citizens should be involved in the democratic process through serving on juries, writingthat "the common people, should have as complete a control, as decisive a negative, in everyjudgment of a court of judicature" as in the legislature. ADAMS, supra note 1, at 253.

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the administration of government."' 1 3 The early American jury may in facthave fulfilled this role; Alexis de Tocqueville, describing a visit to America,called the jury "first and foremost a political institution" H14 and "a form of popu-lar sovereignty."' 15

What were the Founders' reasons for ensuring that citizens had the op-portunity to participate in government through serving on the jury? Legal scho-lars have suggested several theories, which include benefits to the citizens them-selves, as well as benefits to the government as a whole." 6 First, service on ajury enables jurors to learn more about their legal rights, ultimately teachingthem to function more effectively as citizens in a democratic society." 7 Accord-ing to the Federal Farmer, service on a jury was the "means by which the peopleare let into the knowledge of public affairs-are enabled to stand as the guardi-ans of each others rights, and to restrain, by regular and legal measures, thosewho otherwise might infringe upon them."'" 8 Alexis de Tocqueville describedthis function of jury service in America, noting that "the jury.., is also the mosteffective means of teaching the people how to rule."' 19 In this way, the right tojury trial can be seen not only as an individual right accorded to litigants, butalso as a valuable legal institution benefiting jurors themselves. 20

In addition to the role that service on a jury plays in teaching citizensabout democracy and their legal rights, the jury also can be seen as an integralpart of the judicial branch, in what has been termed by the constitutional theoristJohn Taylor of Caroline as the "lower judicial bench" in a bicameral judici-ary.121 Such a formulation of the judicial branch is appealing given the checks-and-balances that are prevalent throughout the branches of government, in par-ticular the bicameralism found in the legislative branch. 122 Anti-Federalist writ-

113 HERBERT J. STORING, WHAT THE ANTI-FEDERALISTS WERE FOR 19 (1981).

114 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 313 (Arthur Goldhammer trans., The

Library of America 2004) (1835).115 Id. at 315.116 See, e.g., AMAR'S BILL OF RIGHTS, supra note 11, at 93-96 (jurors as students of the law and

as lower branch in bicameral judiciary); Brief History, supra note 5, at 876 (jurors as students ofthe law); Scheiner, supra note 107, at 153-56 (jurors as last redoubt of self-government); Middle-brooks, supra note 26, at 387-88 (jurors as part of lower branch in bicameral judiciary).117 See AMAR'S BILL OF RIGHTS, supra note 11, at 93-94.

118 Letters From The Federal Fanner, in 2 THE COMPLETE ANTI-FEDERALIST 320 (Herbert J.

Storing ed., 1981) [hereinafter Federal Fanner]; see also Scheiner, supra note 107, at 154.119 DE TOCQUEVILLE, supra note 114, at 318; see also AMAR'S BILL OF RIGHTS, supra note 11,

at 93 (using de Tocqueville's descriptions of the American juror as evidence of the role of juror asstudent).120 See Scheiner, supra note 107, at 155 (describing the "empowering and enabling" functions

of jury service).121 JOHN TAYLOR, AN INQUIRY INTO THE PRINCIPLES AND POICY OF THE GOVERNMENT OF THE

UNIrED STATES 209 (Yale Univ. Press 1950) (1814); AMAR'S BILL OF RIGHTS, supra note 11, at95; Middlebrooks, supra note 26, at 387.122 See AMAR'S BILL OF RIGHTS, supra note 11, at 95.

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ings from that time confirm that some Founders shared this conception of thejury. 123 Furthermore, the arguments made by Andrew Hamilton in the trial ofJohn Peter Zenger illustrate this role of the jury in action; Hamilton called uponthe jurors to make purely legal determinations similar to those made by a judge,and to further provide a check on the judge's legal determinations.' 24 Given thewide publicity of Zenger's trial, 125 these arguments no doubt influenced theFounders' conception of the proper role of the jury.

In carrying out its functions as a protector against governmental over-reaching and as a participant in the democratic processes, the jury was con-ceived by the Founders to be a central figure in the administration of justice. 26

Not only were the rights to jury trials guaranteed through the federal Constitu-tion and Bill of Rights, but the right to jury trials in criminal cases was alsowidely guaranteed by the states in their own constitutions enacted prior to theConstitutional Convention. 127 In fact, all of the original states preserved theright to jury trials in civil cases through constitutional provision, statute, or byjudicial decision.128 The Federal Farmer declared that "[t]he jury trial... is byfar the most important feature in the judicial department in a free country...,,129 In addition, the influence of the jury extended outside the courtroom and

into the society at large.130 Alexis de Tocqueville described the unique role ofthe jury thusly: "It would be a very narrow view to look upon the jury as a merejudicial institution; for however great its influence may be upon the decisions ofthe courts, it is still greater on the destinies of society at large."'13'

B. The Founders' Conception of the Right of the Jury to Decide Issues ofLaw

At the time of the Founding, it was almost universally accepted that ju-ries in criminal cases had the right to decide issues of law; in addition, juries

123 See, e.g., Essays by a Farmer (IV), in 5 THE COMPLETE ANTI-FEDERALIST 38 (Herbert J.

Storing ed., 1981) (describing the jury as "the democratic branch of the judicial power more neces-sary than representatives in the legislature."); Federal Farmer, supra note 118, at 320 (declaringthat through juries "drawn from the body of the people ... we secure to the people at large, theirjust and rightful control [sic] in the judicial department.").124 See discussion supra Part II.B.

12 See Brief History, supra note 5, at 873-74.126 See AMAR'S BILL OF RIGHTS, supra note 11, at 96-98.127 See Levy, supra note 12, at 269.128 Smith, supra note 4, at 423-24.129 Federal Farmer, supra note 118, at 320.130 Smith, supra note 4, at 421-22.131 ALEXIS DE TOCQUEvILLE, 1 DEMOCRACY IN AMERICA 282 (Phillips Bradley ed., 7th ed.1956) (1835).

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generally decided issues of law in civil cases during this time. 32 Often, theserights were codified in state constitutions or statutes, or were accorded in judi-cial decisions. 33 A contemporary dictionary even recognized this right in thecontext of criminal cases in its definition of the word "jury," stating that juries,"consisting usually of twelve men, attend courts to try matters of fact in civilcauses, and to decide both the law and the facts in criminal prosecutions."'134

Several scholars who have examined the jury's right to decide issues oflaw in early America have theorized that this right developed more as a result ofpractical considerations instead of strongly-held philosophical beliefs about therole of the jury.135 Unlike judges in England, most judges in America had littleformal legal training; 136 American judges were often administrative or legisla-tive officials or other prominent members of the local community.'37 In RhodeIsland, for instance, knowledge of the law was not a requirement for holding ajudicial office. 38 In fact, judges in Rhode Island apparently did not issue juryinstructions until 1833.39 Judges in Rhode Island "held office not for the pur-pose of deciding causes, for the jury decided all questions of law and fact; butmerely to preserve order, and see that the parties had a fair chance with thejury."'14 Given that jurors were often as knowledgeable as judges regardingissues of law, it may have been natural for jurors to decide both issues of lawand fact in a case. 14 1

132 R.J. Farley, Instructions to Juries-Their Role in the Judicial Process, 42 YALE L.J. 194,

202 (1932); Smith, supra note 4, at 446-47; Changing Role, supra note 10, at 172-73.133 See Smith, supra note 4, at 446-48 and n.300-02 (providing examples of state constitutionsand statutes adopted around the time of the Revolution that guaranteed the jury's right to decideissues of law).134 NOAH WEBSTER, DICTIONARY OF THE ENGLISH LANGUAGE (1st ed. 1828); Clay S. Conrad,

Jury Nullification as a Defense Strategy, 2 TEx. F. ON C.L. & C.R. 1, 6 (1995). Another legaldictionary widely used in colonial Virginia stated that "(i]f a jury take upon them the knowledgeof the law, and give a general verdict, it is good; but in cases of difficulty, it is best and safest tofind the special matter, and to leave it to the judges to determine what is the law upon the fact."JACOB'S LAW DICTIONARY (10th ed. 1782).135 See, e.g., Brief History, supra note 5, at 903-06 (suggesting that the jury's role in decidingissues of law arose due to the lack of judges who were educated in the law); Harrington, supranote 55, at 378-79 (citing the lack of formal legal training of judges as a contributing factor to thepower of the jury); WILLIAM EDWARD NELSON, AMERICANIZATION OF THE COMMON LAW: THE

IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY, 1760-1830 28-30 (Univ. of Ga Press1994) (1975) (describing how the Massachusetts judicial system itself contributed to the jury'srole in deciding issues of law in Massachusetts courts).136 See Brief History, supra note 5, at 903-05 (describing the lack of formal legal training

among judges in Massachusetts, Rhode Island, New Jersey, and New Hampshire).137 Harrington, supra note 55, at 378.

138 Amasa M. Eaton, The Development of the Judicial System in Rhode Island, 14 YALE L.J.

148, 153-54 (1905).139 Brief History, supra note 5, at 904.140 Howe, supra note 24, at 591 (citation omitted) (internal quotations omitted).141 See Harrington, supra note 55, at 378-79; Brief History, supra note 5, at 904.

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Along with the relative lack of formal legal training among judges,some of the early American court systems themselves may have given juries thede facto power to decide issues of law. One of the most prominent of these sys-tems was that of Massachusetts, which held trials before at least three judgeswho would each give their own opinions concerning the law in the jury instruc-tions.142 When the judges' opinions conflicted with one another, the jury wasfree to decide which of the opinions to follow.143 Professor William E. Nelsonconcluded from the structure of this system that juries in Massachusetts hadvirtually unlimited authority to decide the law.144 Even judges in other jurisdic-tions made it clear that their interpretation of the law was not binding upon thejurors. 145

Based on the aforementioned circumstances, one might conclude thatthe jury's right to decide issues of law arose solely from considerations of prac-ticality, and thus the right should not be considered an integral part of the Foun-ders' conception of the jury. On the contrary, even though the jury's right todecide issues of law "may have arisen from haphazard practice at the time,"146

by the time of the Revolution the right to decide issues of law was central to thejury's role in society. As defense counsel in the case of People v. Croswell,147

Alexander Hamilton argued that

it is not only the province of the jury, in all criminal cases, tojudge of the intent with which the act was done, as being parcelof the fact; they are also authorized to judge of the law as con-nected with the fact.... In England, trial by jury has alwaysbeen cherished, as the great security of the subject against theoppression of government; but it never could have been a solidrefuge and security, unless the jury had the right to judge of theintent and the law. 148

Hamilton further stated that the jury should make legal determinations based notonly upon the judge's opinion, but also upon arguments of counsel and "lawauthorities that are read," suggesting that the jury should have an active, inde-pendent role in deciding issues of law. 149 These arguments indicate that Hamil-

142 NELSON, supra note 135, at 26.143 Id.144 Id. at 28; see also Smith, supra note 4, at 448.

145 Harrington, supra note 55, at 379; see Robert L. Jones, Finishing a Friendly Argument: TheJury and the Historical Origins of Diversity Jurisdiction, 82 N.Y.U. L. REv. 997, 1031 (2007).146 See Brief History, supra note 5, at 906.147 3 Johns Cas. 337, 362 (N.Y. 1804) (emphasis in original).148 Id.149 Id.

(The jury ought, undoubtedly, to pay every respectful regard to the opinion ofthe court; but suppose a trial in a capital case, and the jury are satisfied from

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ton viewed the jury's right to decide issues of law to be of much more signifi-cance than considerations of practicality and convenience, for he directly linkedthe jury's right to decide issues of law to the role of the jury in protectingagainst governmental overreaching. His statements further indicate that he be-lieved that the right included making pure legal determinations, and not justrefusing to apply an unjust law.

Like Hamilton, Thomas Jefferson recognized the right of jurors to de-cide issues of law under circumstances in which there could be the potential forgovernmental or judicial oppression. In Notes on the State of Virginia, hewrote:

[I]t is usual for the jurors to decide the fact, and to refer the lawarising on it to the decision of the judges. But this division ofthe subject lies with their discretion only. And if the questionrelate to any point of public liberty, or if it be one of those inwhich the judges may be suspected of bias, the jury undertaketo decide both law and fact.150

This passage also suggests that Jefferson viewed the right to decide issues oflaw as essential to the jury's role as a "bulwark of liberty."' 51

James Wilson, an extensive contributor to the Constitution, also con-firmed the right of the jury to decide issues of law when he wrote:

Suppose that, after all the precautions taken to avoid it, a differ-ence of sentiment takes place between the judges and the jurywith regard to a point of law .... What must the jury to do? Thejury must do their duty and their whole duty. They must decidethe law as well as the fact. 52

Wilson's writings reveal that his conception of the jury's role in deciding issuesof law was similar to the idea that the jury was to act like the lower branch in abicameral judiciary, empowered to decide issues of law in a similar manner as a

the arguments of counsel, the law authorities that are read, and their ownjudgment, .... that the law arising in the case is different from that which thecourt advances, are they not bound by their oaths, by their duty to their creatorand themselves, to pronounce according to their own convictions?)

Id.; see also Middlebrooks, supra note 26, at 375 (discussing People v. Croswell and Hamilton'sarguments to the jury).150 THOMAS JEFFERSON, NOTES ON THE STATE OF VIRGINIA (1781-1782), reprinted in WRITINGS:

AUTOBIOGRAPHY, NOTES ON THE STATE OF VIRGINIA, PUBLIC AND PRIVATE PAPERS, ADDRESSES,LETTERS, at 256 (Merrill D. Peterson ed., 1984) (1781-1782).151 Harrington, supra note 55, at 388.

152 JAMES WILSON, 2 THE WORKS OF JAMES WILSON 540 (Robert Green McCloskey ed., Harv.

Univ. Press 1967); accord Pepper, supra note 21, at 617-18.

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judge.' 53 Wilson wrote that juries "must determine [legal] questions, as judgesmust determine them, according to law."' 54 Wilson clarified the types ofsources that should be relied upon by juries in making decisions, stating that"law, particularly the common law, is governed by precedents, and customs, andauthorities, and maxims: those precedents, and customs, and authorities, andmaxims are alike obligatory upon jurors as upon judges, in deciding questions oflaw."' 155 While other Founders recognized that the jury's right to decide issuesof law furthered its role as a protector of the people against governmental over-reaching, Wilson associated the jury's right to decide issues of law with its roleas a central participant in the administration of justice. 56

John Adams, a vigorous proponent of the jury's right to decide issues oflaw, arguably went further in his writings than did other Founders, for his writ-ings overtly recognized the jury's right to decide the constitutionality of laws. 157

According to Adams,

[t]he general rules of law and common regulations of society,under which ordinary transactions arrange themselves, are wellenough known to ordinary jurors. The great principles of theconstitution are intimately known; they are sensibly felt byevery Briton; it is scarcely extravagant to say they are drawn inand imbibed with the nurse's milk and first air.' 58

If a judge made a ruling that violated one of these fundamental constitutionalprinciples, Adams believed that a juror had a duty "to find the verdict accordingto his own best understanding, judgment, and conscience, though in direct oppo-sition to the direction of the court."'159 Scholars commenting upon Adams' writ-ings have associated them with the now-defunct "natural rights" theory-thetheory that there was a natural law independent of positive law developed bysociety, and that the natural law should be used as the preferred source of lawwhen the two conflicted.' 6° While his writings do share similarities with thenatural rights theory, they are distinguishable in that Adams focused on the ju-rors' understanding of the positive law and constitutional principles, rather than

153 See WILSON, supra note 152, at 542.154 Id.155 Id.156 See Pepper, supra note 21, at 617-18.157 See ADAMS, supra note 1, at 254-55.158 Id. at 255.

159 Id. at 254-55; see also id. at 254 ("Therefore, the jury have a power of deciding an issue

upon a general verdict. And, if they have, is it not an absurdity to suppose that the law wouldoblige them to find a verdict according to the direction of the court, against their own opinion,judgment, and conscience?").16o See, e.g., Changing Role, supra note 10, at 172. See generally POUND, supra note 4, at 129-

32 (describing the natural rights theory and its effect on the philosophy of jury verdicts).

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calling upon jurors to render verdicts based solely on their conception of a "nat-ural law."'

16 1

Adams' conception of the jury having the right to decide the constitu-tionality of laws was not just theoretically plausible, it was in fact happening incolonial America prior to the Revolution. Henry Hulton, the British revenuecommissioner, asked how his men could perform their duties "before a Jury ofthe People [who] had held the very Laws under which the officers acted, to beUnconstitutional."' 162 Moreover, as noted in Part ll.B, Andrew Hamilton hadadvocated a form of jury review in the Zenger case itself. Given the statementsregarding the role of the jury from Founders such as Thomas Jefferson, whoconsidered a jury trial "the only anchor... by which a government can be heldto the principles of its constitution,"1 63 it appears that many Founders consideredthe right to jury review as necessary to ensure that the jury would be able toexecute its roles as a protector against governmental overreaching and as anindependent actor in the judicial system.

Even assuming that the jury's right to decide issues of law arose out ofconditions in colonial America, the Founders seemingly integrated that rightinto their conception of the jury's roles in American society-as a protectoragainst governmental overreaching, as a participant in the democratic process,and as a central figure in the administration of justice. Arguably, the Foundersalso considered the jury's right to decide the constitutionality of laws as essen-tial to fulfilling these roles.

IV. EROSION OF THE JURY'S RIGHT TO DECIDE ISSUES OF LAW IN THENINETEENTH CENTURY

This Part first details the recognition of the jury's right to decide issuesof law immediately following the Revolution and continuing into the early partof the nineteenth century. While there was no uniformity among the federalcourts and the states, the right to decide issues of law was accepted as common-place, and the right to decide the constitutionality of laws was at least somewhatimplicitly accepted. In the 1830s, courts began narrowing the role of the jury indeciding issues of law, which culminated in the 1895 decision in Sparf v. UnitedStates. Accordingly, by the end of the nineteenth century, juries no longer hadthe right to decide issues of law, and, to the extent that juries ever had the rightto decide the constitutionality of laws, that right was completely foreclosed.

161 See Pepper, supra note 21, at 618 (suggesting that Adams' use of the term "conscience"

should be interpreted in the context of making legal determinations and not interpreted morebroadly).162 JOHN PHILLIP REID, IN A REBELLIOUS SPIRIT 34 (1979); Magliocca, supra note 22, at 194.

163 3 THOMAS JEFFERSON, THE WRITINGS OF THOMAS JEFFERSON 71 (H.A. Washington ed.,

1861).

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A. Early Recognition of the Right to Decide Issues of Law

If there was any doubt about whether the jury's right to decide issues oflaw had survived the American Revolution, such doubt was promptly laid to restin the 1794 case of Georgia v. Brailsford,164 a civil trial in which the UnitedStates Supreme Court had original jurisdiction.165 The case involved a disputebetween the state of Georgia and a British subject regarding which party waslegally entitled to an outstanding debt.166 The facts of the case were agreedupon by the parties, leaving the jury to decide the case based on its determina-tion of the law. 167 In Chief Justice Jay's instructions to the jury, he first gave thejury the unanimous opinion of the Court regarding the legal issues raised in thecase. 168 Rather than directing the jury to base its decision solely on the opinionof the Court, Chief Justice Jay continued:

It may not be amiss, here, Gentlemen, to remind you of thegood old rule, that on questions of fact, it is the province of thejury, on questions of law, it is the province of the court to de-cide. But it must be observed that by the same law, which rec-ognizes this reasonable distribution of jurisdiction, you havenevertheless a right to take upon yourselves to judge of both,and to determine the law as well as the fact in controversy. Onthis, and on every other occasion, however, we have no doubt,you will pay that respect, which is due to the opinion of thecourt: For, as on the one hand, it is presumed, that juries are thebest judges of facts; it is, on the other hand, presumable, that thecourt[s] are the best judges of law. But still both objects arelawfully, within your power of decision.'69

During deliberations, the jury returned to ask the Court to advise thejury further on two purely legal questions. 170 After receiving explanations onthese two issues, the jury rendered a verdict that was consistent with the Court'sopinion on the matter.171

While many scholars have relied upon Georgia v. Brailsford in supportof the proposition that the jury's right to decide issues of law was widely ac-

164 3 U.S. (3 Dall.) 1, 3 (1794); see Pepper, supra note 21, at 620 (providing an analysis ofChief Justice Jay's instructions to the jury regarding its right to decide issues of law and fact).165 Jones, supra note 145, at 1035-36.

166 Brailsford, 3 U.S. (3 Dall.) at 1.167 Id. at 4.

168 Id.169 Id. at 4 (emphasis added).170 Id.

1' See id.

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cepted at this time, some scholars have downplayed its significance. 173 Inparticular, scholars suggesting that the jury's right to decide law should be morenarrowly construed have relied upon Chief Justice Jay's instructions to the jurythat the court is best equipped to decide questions of law and that the juryshould respect the court's opinion as to these matters, going so far as to suggestthat the Court was effectively giving a directed verdict in the case.1 74 Scholarshave pointed out that the jury actually sought advice from the Court on legalissues and ultimately heeded the Court's opinions, further giving credence to theidea that the jury did not decide issues of law for itself. 75 While these conten-tions have appeal at first blush, they seem to confuse the existence of the rightof the jury to decide issues of law with how that right was exercised in the par-ticular case before the Court. It is true that the Court gave its opinion on thelegal issues in the case; however, it also recognized that the final determinationof the issues of law and issues of fact were "lawfully[] within [the jury's] powerof decision."17 6 Although the jury sought the advice of the Court regarding sev-eral legal issues, this action was consistent with the notion that the jury shouldmake its determinations based on an informed understanding of the law. 177 Thefact that the jury ultimately followed the Court's opinion does not diminish itsright to decide issues of law contrary to that of the court in other circumstances;rather, it only shows that such a departure was not warranted in this case.

Although the Supreme Court did not directly address the role of the juryin deciding issues of law for the next century, 78 lower federal courts continuedto recognize the right, including decisions involving Supreme Court Justiceswho were riding the circuit.179 For example, in Henfield's Case, 80 Justice Wil-son first instructed the jury regarding the significance of its decision, stating that"[lhis is, gentlemen of the jury, a case of the first importance. Upon your ver-dict the interests of four millions of your fellow-citizens may be said to depend.But whatever be the consequence, it is your duty, it is our duty, to do only what

172 See, e.g., Changing Role, supra note 10, at 173-74; Brief History, supra note 5, at 907;

Jones, supra note 145, at 1035-36; Farley, supra note 132, at 232.173 See, e.g., Ann Woolhandler & Michael G. Collins, The Article Ii Jury, 87 VA. L. REv. 587,626-29 (2001); Pepper, supra note 21, at 620-21.174 Woolhandler & Collins, supra note 173, at 628-29.175 Pepper, supra note 21, at 621.

176 Georgia v. Brailsford, U.S. (3 Dali.) 1, 4 (1794).

177 See WILSON, supra note 152, at 540-42; discussion supra Part III.B.

178 Nevertheless, in Bingham v. Cabot, Justice Iredell reaffirmed the right of the jury to decide

issues of law contrary to the court's opinion, asserting that "though the jury will generally respectthe sentiments of the court on points of law, they are not bound to deliver a verdict conformably tothem." Bingham v. Cabot, 3 U.S. (3 Dall.) 19, 33 (1795).179 Pepper, supra note 21, at 621. For an extensive listing of cases in which Supreme Court

Justices reaffirmed the law-finding function of juries, see Howe, supra note 24, at 589 n.22.180 Henfield's Case, 11 F. Cas. 1099 (C.C. Pa. 1793).

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is right."'18 1 After explaining the court's interpretation of the law to the jury,Justice Wilson concluded by stating "that the jury, in a general verdict, mustdecide both law and fact, but that this did not authorize them to decide it as theypleased; they were as much bound to decide by law as the judges: the responsi-bility was equal upon both."182 In the treason trial of Aaron Burr in 1807, ChiefJustice Marshall declared in his jury instructions that "[t]he jury have now heardthe opinions of the court on the law of the case. They will apply that law to thefacts and will find a verdict of guilty or not guilty as their own consciences maydirect." 183 These jury instructions support the proposition that federal courtscontinued to recognize the jury's right to decide issues of law in the early nine-teenth century. Although the jury's right to decide questions of law was notuniform throughout the states, evidence suggests that this right was widely ac-cepted in the first half of the nineteenth century.184 By 1851, at least nine stateshad given juries the right to decide issues of law through constitutional provi-sion or statute, and at least six other states had recognized the jury's right todecide issues of law by judicial decision. 185 For example, the Massachusettslegislature enacted a statute in 1808 giving the jury the right to decide both thefacts and law when rendering a general verdict.1 86 Although the precise effect ofthe statute is unknown, judicial decisions in Massachusetts prior to 1840 gener-ally recognized the jury's right to decide issues of law in criminal cases notwith-standing the statute. 187

In an 1804 seditious libel case in New York, People v. Croswell,188

Judge Kent not only affirmed the jury's right to decide issues of law in criminalcases, but he also addressed a distinction increasingly made by people betweenthe jury's power to decide issues of law and its right to make such decisions. 189

In rebuffing the notion that the jury merely had the power to decide issues oflaw, Judge Kent reasoned that

[t]he law must, however, have intended, in granting this powerto a jury, to grant them a lawful and rightful power, or it wouldhave provided a remedy against the undue exercise of it. The

181 Id. at 1119.182 Id. at 1120-21 (emphasis added). For more information regarding the significance of Jus-

tice Wilson's instructions in Henfield's Case, see Middlebrooks, supra note 26, at 377-79.183 Brief History, supra note 5, at 907.'8 Id. at 910; see Changing Role, supra note 10, at 174-76 (describing the jury's right to de-cide issues of law in Massachusetts). See generally Howe, supra note 24 (providing a detailedaccount of the decline of the jury's right to decide issues of law in several states).185 Brief History, supra note 5, at 910.

186 Changing Role, supra note 10, at 174.

187 Id at 175-76.

188 People v. Croswell, 3 Johns. Cas. 337 (N.Y. Sup. Ct. 1804).

189 Id.; Farley, supra note 132, at 202-03 (describing the importance of the case).

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true criterion of a legal power, is its capacity to produce a de-finitive effect liable neither to censure nor review. And the ver-dict of not guilty, in a criminal case, is, in every respect, abso-lutely final. The jury are not liable to punishment, nor the ver-dict to control. No attaint lies, nor can a new trial be awarded.The exercise of this power in the jury has been sanctioned, andupheld in constant activity, from the earliest ages. 190

According to Judge Kent, the fact that the jury was given the power to decideissues of law without reservation implied that the jury not only had the power todecide issues of law, but the right to decide issues of law as well.

While the jury's right to decide issues of law was consistently recog-nized in America in the first several decades following the Revolution, the rightto jury review was considerably less clear, likely due in part to the infrequencywith which the right would be addressed in judicial proceedings.Typically, any debate regarding the existence of the right would only arise whenan attorney attempted to argue the unconstitutionality of a statute to the jury.191

The most famous of these early cases was United States v. Callender,192 whichinvolved the prosecution of James Callender for seditious libel against the Pres-ident of the United States. 193 When William Wirt, counsel for the defense, at-tempted to argue the unconstitutionality of the Sedition Act, Justice Chase im-mediately interrupted him and told him to take a seat.194 Justice Chase told Wirtthat arguing the constitutionality of a statute "is irregular and inadmissible; it isnot competent to the jury to decide on this point .... ,195 An exchange betweenJustice Chase and William Wirt ensued, in which Wirt attempted to convinceChase that the jury's right to decide issues of law necessarily included a right todecide the constitutionality of laws:

CHASE, Circuit Justice. No man will deny your law-we allknow that juries have the right to decide the law, as well as thefact-and the constitution is the supreme law of the land, whichcontrols all laws which are repugnant to it.

Mr. Wirt. Since, then, the jury have a right to consider the law,and since the constitution is law, the conclusion is certainly syl-logistic, that the jury have a right to consider the constitution.

190 Croswell, 3 Johns. Cas. at 366-68191 AMAR's BILL OF RIGHTS, supra note 11, at 98.

192 United States v. Callendar, 25 F. Cas. 239 (C.C. Va. 1800).193 Id.; see also AMAR's BILL OF RIGHTS, supra note 11, at 98-104 (analyzing Justice Chase's

arguments against jury review); Magliocca, supra note 22, at 204-07 (analyzing the case in thelarger context of jury review in the early 1800s).194 Callendar, 25 F. Cas. at 252-53.195 Id. at 253.

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CHASE, Circuit Justice. A non sequitur, sir.196

Justice Chase believed that the right to jury review was "very absurdand dangerous" and "has a direct tendency to dissolve the union of the UnitedStates," affording jurors greater power over laws than those in the national legis-lature and leading to a lack of uniformity in the laws. 197 Ultimately, JusticeChase did not allow Wirt to argue the unconstitutionality of the statute to thejury.

198

Some scholars have been quick to attack the theoretical underpinningsand incoherent reasoning in Justice Chase's decision. 99 Notwithstanding thesearguments, Justice Chase's arguments likely had little de facto precedential ef-fect due to the subsequent impeachment of Chase as a result of his conduct inCallender and other cases. 200 Among the charges against Chase were that hehad tried "to wrest from the jury their indisputable right to hear argument, anddetermine upon the question of the law, as well as on the question of fact, in-volved in the verdict they are required to give."'2 ' While the impeachment didnot directly concern his refusal to allow counsel to argue the unconstitutionalityof the Sedition Act in Callender, his impeachment undoubtedly called into ques-tion his handling of the Callender case specifically and his views of the law-finding function of juries more generally.2 °2

Eight years after Callender, the right of counsel to argue the unconstitu-tionality of a law to the jury arose again in United States v. The William,2 °3 acase concerning the Embargo Act.2°4 Prior to trial, Judge John Davis deter-mined the Embargo Act to be constitutional; 20 5 nevertheless, he allowed defense

196 Id. (emphasis added).

197 Id. at 256-57. In fact, Justice Chase suggested that allowing the jury to decide the constitu-tionality of laws would itself be unconstitutional. See id. at 257.198 Id. at 257.199 See Magliocca, supra note 22, at 205-07; AMAR'S BILL OF RIGHTS, supra note 11, at 98-

104.200 Magliocca, supra note 22, at 205-07; see also Harrington, supra note 55, at 406-14 (provid-

ing a detailed account of Justice Chase's actions and his subsequent impeachment).201 Articles of Impeachment, Art. I, § 3, in REPORT OF THE TRIAL OF THE HON. SAMUEL CHASE

app. 3 (1805). Even though Justice Chase seemed to accept the jury's right to decide issues of lawin Callender, he narrowly interpreted this right to only include the jury's right to apply the legalstandards determined by a judge to a particular case, not the right to determine the law itself. SeeHarrington, supra note 55, at 414.202 See Magliocca, supra note 22, at 207. But see Pepper, supra note 21, at 627-31 (suggesting

that since the impeachment of Chase did not include any explicit criticism of Chase's refusal toallow the jury to decide the constitutionality of the Sedition Act, this lack of criticism implied thatCongress tacitly agreed with his denial of jury review).203 28 F. Cas. 614 (C.C. Mass. 1808).

204 Id.; Magliocca, supra note 22, at 195-96.

205 See The William, 28 F. Cas. 614.

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counsel to argue the unconstitutionality of the Act to the jury.2 0 6 Ultimately, thejury found the law to be unconstitutional. ° More importantly, Judge Davisdiscussed Callender in his judicial opinion, including Justice Chase's denial ofthe right to jury review.2 °s That Judge Davis allowed defense counsel to arguethe unconstitutionality of the Embargo Act to the jury, despite recognizing Jus-tice Chase's decision to the contrary, implies that Justice Chase's views on theright to jury review were not universally accepted by the early federal courts.Even though the aforementioned decisions are far from conclusive on the issue,they certainly do not foreclose the possibility that among the rights accorded tothese early juries was an implicit right to determine the constitutionality oflaws.

209

B. Tracing the Rapid Demise of the Jury's Right to Decide Issues of Law

Beginning in the early 1830s, federal courts began to question the set-tled proposition that the jury possessed a broad right to decide issues of law.210

At first, courts made minor shifts in their jury instructions that implicitly limitedthe right. In United States v. Fenwick,21' the court instructed the jury that "[i]ncriminal cases, the jury has a right to give a general verdict, and, in doing so,must, of necessity, decide upon the law as well as upon the facts of the case., 212

In a more narrow formulation of the right, Judge Cranch declared in UnitedStates v. Stockwel 213 that

the right of the jury to decide the law, was only the right to finda general verdict which includes both the law and the facts ofthe case. That the question whether one fact can be inferred

206 Magliocca, supra note 22, at 196.

207 Id.208 See The William, 28 F. Cas. at 617

(The immediate question that the learned judge was then considering, was,whether the power of determining the constitutionality of the law belonged,exclusively, to the court, or whether it could be rightfully exercised by a jury.His remaining observations, appearing in the published account of the trial,more especially apply to that question).

209 See Sparf v. United States, 156 U.S. 51, 162-63 (1895) (Gray, J., dissenting) (using United

States v. The William to support the notion that historically the jury had a broad right to decide thelaw).210 See Pepper, supra note 2 1, at 636.211 United States v. Fenwick, 25 F. Cas. 1062 (C.C. D.C. 1836).

212 Id. at 1064; Pepper, supra note 21, at 636.

213 United States v. Stockwell, 27 F. Cas. 1347 (C.C. D.C. 1836).

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from another is a question of law, and to be decided by the court214

If the jury's right to decide issues of law had been quietly chipped awayin the early 1830s, it was under direct attack in the 1835 case of United States v.Battiste.1 5 Battiste involved a prosecution for violation of a statute that prohib-ited slave trading; since the parties did not dispute the facts of the case, the deci-sion rested on the interpretation of the statute.21 6 In his instructions to the jury,Justice Joseph Story acknowledged that when juries decide criminal and civilcases, "their verdict, when general, is necessarily compounded of law and offact; and includes both. In each they must necessarily determine the law, aswell as the fact., 217 However, he made an important qualification: "In each,they have the physical power to disregard the law, as laid down to them by thecourt. But I deny, that, in any case, civil or criminal, they have the moral right todecide the law according to their own notions, or pleasure., 21 8 Instructing thejury on its proper role, Justice Story declared that "[i]t is the duty of the court toinstruct the jury as to the law; and it is the duty of the jury to follow the law, asit is laid down by the court." 219

Justice Story justified his views of the proper role of the jury due to hisfear that if juries were to decide purely legal questions, it would lead to a lack ofuniformity and predictability in the law, as well as no remedy against errorsmade by the jury.220 He continued: "[B]elieving, as I do, that every citizen has aright to be tried by the law, and according to the law; that it is his privilege andtruest shield against oppression and wrong; I feel it my duty to state my viewsfully and openly on the present occasion. 22' Given the influence of JusticeStory's statements in Battiste on the future of the scope of the jury's law-findingfunction,222 it is important to realize how his justifications directly conflict withthe conceptions of the jury and judge at the time of the Revolution. 223 TheFounders did not fear that citizens' rights would be inadequately protected byjuries; rather, many feared that citizens' rights could not be trusted in the handsof the government, and in particular in the hands of judges whose power was

214 Id. at 1348 (emphasis added).

215 24 F. Cas. 1042 (C.C. Mass. 1835); see also Brief History, supra note 5, at 907-08.

216 See Battiste, 24 F. Cas. at 1042-45. For background information about the highly political

nature of this case, see Middlebrooks, supra note 26, at 394-98.217 Battiste, 24 F. Cas. at 1043.

218 Id.

219 Id.

220 Id.

221 ld.

222 See Harrington, supra note 55, at 425-26.

223 See supra Part III.A.

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224left unchecked by juries. In support of this proposition, Akhil Amar noted thedifferences in the restrictions placed on judges and juries in the Bill of Rights,which suggest that the Founders were much more wary of judicial overreachingthan of jury overreaching. 22 While the theoretical underpinnings of JusticeStory's views may have been flawed, his decision undeniably signaled a majorshift in courts' attitudes toward the proper role of the jury.226

The attack against the jury's right to decide issues of law continued inthe 1851 decision in United States v. Morris.227 The Morris decision arguablywent further than Battiste in limiting the right of the jury to decide issues of law;moreover, the decision was significant because it concerned whether defense

228counsel could argue the unconstitutionality of a law to the jury. The caseinvolved the prosecution of Robert Morris for violation of the Fugitive SlaveAct.229 When defense counsel attempted to argue the unconstitutionality of theFugitive Slave Act to the jury, Justice Benjamin Curtis stopped him from doingso, and he only allowed counsel to make the argument to the court outside of thehearing of the jury.230 Thereafter, Justice Curtis denied that the jury had a rightto determine the constitutionality of laws, looking to the structure of the Consti-tution to conclude that Congress did not intend to empower unqualified indi-viduals to decide constitutional issues but rather left that power to judges, whowere duty-bound by the Constitution to uphold the law and had to take an oathto uphold the Constitution.23

1 Justice Curtis went further in denying the jury'sright to decide any questions of law, declaring that

under the [C]onstitution of the United States, juries, in criminaltrials, have not the right to decide any question of law; and thatif they render a general verdict, their duty and their oath requirethem to apply to the facts, as they may find them, the law givento them by the court.232

224 AMAR's BILL OF RIGHTS, supra note 11, at 83-86.

225 See id. at 96-97.

226 See Harrington, supra note 55, at 425. Other federal cases denying the right of the jury to

decide issues of law include United States v. Riley, 27 F. Cas. 810 (C.C.S.D.N.Y. 1864); UnitedStates v. Greathouse, 26 F. Cas. 18 (C.C.N.D. Cal. 1863); Stettinius v. United States, 22 F. Cas.1322 (C.C. D.C. 1839); United States v. Shive, 27 F. Cas. 1065 (C.C. E.D. Pa. 1832).227 United States v. Morris, 26 F. Cas. 1323 (C.C. Mass. 1851).

n8 See Magliocca, supra note 22, at 207-09 (discussing the parts of the Morris decision con-cerning the right to jury review).

29 See Middlebrooks, supra note 26, at 401-05 (providing a detailed account of the circum-stances surrounding the Morris trial).230 Morris, 26 F. Cas. at 1331; Middlebrooks, supra note 26, at 403.

231 Morris, 26 F. Cas. at 1332.232 Id. at 1336.

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In dismissing decades of prior precedent to the contrary, Justice Curtisincredibly hypothesized that the Georgia v. Brailsford decision affirming thejury's right to decide questions of law may have been misreported.233 The Mor-ris decision thus represented another push towards the elimination of the jury'slaw-finding function; whereas prior cases had acknowledged the tension be-tween the elimination of the jury's right to decide issues of law and the jury'spower to render a general verdict,234 Justice Curtis' opinion suggested that evenwhen rendering a general verdict, the jury had no right to decide the law butrather must always apply the law given to them by the court.235

While federal courts were increasingly constraining the jury's right todecide issues of law in the mid-nineteenth century, state courts and legislatureswere slower to follow suit.236 Despite the inconsistency between states in theirrecognition of the jury's right to decide questions of law, the general trend wastoward limiting or eliminating the right.237 In Massachusetts, for example, an1845 supreme court decision declared that juries had no right to decide issues oflaw, even though the right had been recognized in prior judicial decisions.238

The Massachusetts legislature responded by enacting a statute explicitly givingcriminal juries the right to decide questions of law and fact in criminal cases. 239

Within the same year, the Massachusetts supreme court decided a case in whichit interpreted the statute as merely a codification of the common law right torender a general verdict and not a right to decide issues of law more generally. 24 °

In Vermont, an 1849 supreme court decision affirmed the jury's right todecide the law in a manner contrary to that of the judge, rejecting the reasoningin United States v. Battiste.24' In this and later decisions, the supreme court reit-erated the need for the right to ensure that the state's citizens were protectedfrom the undue bias of judges or oppression by the courts.242 By 1892, however,the same court announced that the jury's right to decide questions of law wascontrary to the common law, the practice in Great Britain and the United States,and the federal and state constitutions.243 All told, between 1850 and 1931 the

233 Id. at 1334; see Magliocca, supra note 22, at 208-09.

234 See, e.g., United States v. Battiste, 24 F. Cas. 1042, 1043 (C.C.D. Mass. 1835) (No. 14,545)

(acknowledging the jury's power to decide questions of law when rendering general verdicts).235 Morris, 26 F. Cas. at 1336.

236 Harrington, supra note 55, at 425-26; see Howe, supra note 24 (describing inconsistencies

in the recognition of the right between states and the unevenness in the recognition of the rightover time within states).237 See Harrington, supra note 55, at 425-26.

238 Changing Role, supra note 10, at 176-77 (analyzing Commonwealth v. Porter, 51 Mass. (10

Met.) 263 (1845)).239 Id. at 183.

240 Id. (discussing Commonwealth v. Anthes, 71 Mass. (5 Gray) 185 (1855)).

2A' See State v. Croteau, 23 Vt. 14 (1849); Howe, supra note 24, at 592.242 Howe, supra note 24, at 592-93.

243 State v. Burpee, 25 A. 964, 974 (Vt. 1892); see Howe, supra note 24, at 593.

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courts in at least eleven states rejected the right of the jury to decide questions oflaw. 24

The decision of the United States Supreme Court in Sparf v. UnitedStates245 effectively shut the door on the jury's right to decide questions of lawin this country.24 In Sparf, the majority opinion relied heavily on the reasoningof the lower federal court decisions in Battiste and Morris and found that eventhough juries "have the physical power to disregard the law, '4 7 that "it is theduty of juries in criminal cases to take the law from the court, and apply that lawto the facts as they find them to be from the evidence.' ' 248 In spite of the preva-lence of court decisions to the contrary and the unsettled nature of the issue, theCourt declared that "the duty of the jury to receive the law from the court...has become firmly established. 249 Moreover, the Court determined that such asystem was necessary to protect societal and individual rights from the unpre-dictability of a wayward jury.250 According to the Court, without the benefit ofa judge trained in the law to act as a buffer between the jury and the citizens,"our government will cease to be a government of laws, and become a govern-ment of men.,

251

Although Sparf did not specifically address the jury's right to decide theconstitutionality of laws, its reliance on Callender and Morris in support of itsdenial of the jury's right to decide ordinary laws effectively doomed any right tojury review as well.252 More generally, the decision undoubtedly played a rolein states denying the jury's right to decide issues of law.253 Only a few stateshave ostensibly retained that right, but judicial decisions have all but eliminatedthe practical effect of the right.254

By the end of the nineteenth century, the jury's right to decide issues oflaw, expressly recognized by the Supreme Court in Georgia v. Brailsford onlyone century earlier, was effectively eliminated in both federal and state courts.This dramatic shift occurred through a series of federal court decisions over the


245 156 U.S. 51 (1895).

246 Smith, supra note 4, at 452.

247 Sparf, 156 U.S. at 74.

248 Id. at 102.

249 Id. at 64. But see id. at 110-83 (Gray, J., dissenting) (reviewing historical cases and reach-

ing the opposite conclusion).250 See id. at 102-03 ("Under any other system, the courts, although established in order to

declare the law, would for every practical purpose be eliminated from our system of governmentas instrumentalities devised for the protection equally of society and of individuals in their essen-tial rights.").251 Id. at 103.

252 See Magliocca, supra note 22, at 209 (suggesting that the Sparf decision should have sepa-

rated ordinary legal interpretation from questions of constitutionality).253 See Wilson, supra note 45, at 398.

254 See Smith, supra note 4, at 453; Wilson, supra note 45, at 398.

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second half of the nineteenth century, which gained traction throughout thecountry and ultimately with a majority of the Supreme Court Justices in render-ing their opinion in Spaf.

V. AN INEVITABLE CONCLUSION? EVALUATING THE DEMISE OF THE RIGHTOF THE JURY TO DECIDE ISSUES OF LAW IN LIGHT OF FOUNDERS' CONCEPTION

OF THE JURY

As Part IV.B illustrates, the erosion of the jury's right to decide issuesof law was relatively quick in light of the prominent place that the right held inthe country's struggle for independence. Given that the jury's right to decideissues of law was arguably an integral part of the Founders' conception of the

* 255jury, one might inquire as to the explanations for this shift, and whether anyof these explanations serve as a justification for the drastic narrowing of the roleof the jury. A number of reasons were put forth by courts deciding the issue atthe time, including the need for judges to protect citizens from the vagrancies ofU 25625

an impassioned jury, the desire for uniformity in the interpretation of laws,257

and the structure of the federal government. 58 Scholars have also posited theo-ries regarding the demise of the right, such as the professionalization of thepractice of law, 259 the waning distrust of judges, 26° and the diversification of thejury pool. 261However, none of these explanations fully considered the largersocial and political roles fulfilled by the jury at the time of the Founding or howthe jury's law-finding functions comported with these roles.

The prominent federal court decisions of the nineteenth century that de-nied the right of the jury to decide questions of law shared much of the samebasic reasoning for reaching this result.262 One of the consistent themes acrossseveral of the decisions was that the jury did not provide adequate protection forthe citizens in safeguarding their individual rights, and that the judge was neces-sary to intercede on behalf of the citizens to interject the correct law into theproceedings.263 While this theory may have had elements of truth in particularjudicial proceedings, it completely neglected the Founders' conception of the

255 See supra Part III.B.

256 See, e.g., Sparf v. United States, 156 U.S. 51, 102-03 (1895); United States v. Battiste, 24 F.

Cas. 1042, 1043 (C.C.D. Mass. 1835).257 See, e.g., Battiste, 24 F. Cas. at 1043; United States v. Callender, 25 F. Cas. 239, 256-57(C.C.D. Va. 1800).258 See, e.g., Callender, 25 F. Cas. at 256-57; United States v. Morris, 26 F. Cas. 1323, 1331-

33 (C.C.D. Mass. 1851).259 Brief History, supra note 5, at 915-17; Pepper, supra note 21, at 639-40.260 See Pepper, supra note 21, at 639-40.261 See Changing Role, supra note 10, at 191-92; Harrington, supra note 55, at 435-36.262 See, e.g., Sparf v. United States, 156 U.S. 51 (1895); Callender, 25 F. Cas. 239; Battiste, 24

F. Cas. 1042; Morris, 26 F. Cas. 1323.263 See, e.g., Battiste, 24 F. Cas. at 1043; Spar, 156 U.S. at 102-03.

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roles of the judge and jury.264 The Founders were not worried about the jurysubverting the citizens' rights; rather, the Founders realized the necessity of thejury to protect the citizens from governmental abuses. 265 Nevertheless, judges inthis era declared that it was they who could most impartially mete out justice,often adopting a paternalistic tone. According to Justice Curtis in his opinion inMorris, "[W]hen a law, unpopular in some locality, is to be enforced there, thencomes the strain upon the administration of justice; and few unprejudiced menwould hesitate as to where that strain would be most firmly borne. 266 Appar-ently, Justice Curtis and the other judges who adopted this line of reasoning didnot grasp the irony that they were proclaiming judge impartiality while simulta-neously making a decision that directly increased their own power at the ex-pense of that of the jury.

Another argument put forth by judges denying the jury's right to decideissues of law was the potential for a lack of uniformity in the laws if each jurywere empowered to independently interpret the law.267 Undoubtedly, uniformityin the laws is a worthy aspiration; however, allowing lower court judges to in-terpret the laws and rule on the constitutionality of laws also leads to a lack ofuniformity throughout the country.268 Even though the Supreme Court mayhave appellate jurisdiction over cases arising under federal laws or the Constitu-tion, Congress also has the power to provide exceptions to this jurisdiction, andindeed there was no avenue for Supreme Court review of the Callender caseitself.269 The structure of state judicial systems, such as Massachusetts in whichthere were multiple judges each rendering their own interpretation of the law,also undercuts the proposition that historically judges were in a better positionto provide uniformity to the legal system.27° More generally, the Founders con-ceived of a jury that would be an active participant in the administration of jus-tice, and the trial itself would be used as a means of teaching the jury about thelaw and the citizens' rights.271 Under this theory, once a jury became educatedin a particular area of law and received guidance from the judge, the jury shouldbe equipped to make a sound interpretation of the law. Even though jury serviceis an infrequent event for any one juror, one could hope that juries could reachdeterminations that were nearly as uniform as those of judges, since judgeswould help educate the jurors on the law. Such a concept might seem foreign tothe modern reader, but perhaps that is only because the decisions made by legis-

264 See Changing Role, supra note 10, at 172 (describing the Founders' conception of the role

of the jury as protector against government oppression).265 See id.

266 Morris, 26 F. Cas. at 1336.

267 See, e.g., Battiste, 24 F. Cas. at 1043; Callender, 25 F. Cas. at 256-57.

268 See AMAR'S BILL OF RIGHTS, supra note 11, at 101-02.

269 Id. at 101.

270 See NELSON, supra note 135, at 28-30.

271 See supra Part Ifl.A-B.

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latures and judges curtailing the power of the jury have also largely eliminatedthe education aspect of the judicial system.

In addition to the aforementioned reasons used by judges to deny thejury's right to decide issues of law, judges who have denied the right to juryreview have pointed to the Constitution and the structure of the national gov-ernment to infer that the right to decide the constitutionality of laws was to bevested solely in judges.272 In support of this claim, judges looked to the fact thatfederal judges must swear an oath to uphold the Constitution, whereas the Con-stitution puts no such requirement upon jurors.273 Furthermore, judges notedthat both the sheer importance of such decisions and the potential to negate leg-islative acts dictate that neither the Constitution nor the Judiciary Act should beconstrued to give such an important right to juries, but rather to officers of thejudicial branch.274 It is striking that none of these arguments address which partof the Constitution demands that judges decide the constitutionality of laws overother federal officials who take an oath to uphold the Constitution, perhaps be-cause there is no such evidence.275 Instead, the arguments seem to rest on amore basic premise that because deciding the constitutionality of laws is impor-tant to the functioning of the country, the drafters of the Constitution and Con-gress certainly would not have left such a power in the hands of the jury. Again,this premise fails to acknowledge that the Founders conceived of a jury as avital part of the democratic process, and arguably similar to a lower branch of abicameral judiciary.276 If viewed in this manner, both the judge and jury shouldbe able to act as a check on the legislative branch when it passes an unconstitu-tional law.277 Given that the Founders viewed the jury as a protector againstgovernmental overreaching, it follows that the jury should not only have a rolein protecting citizens from an incorrect interpretation of the law, but perhapseven more importantly from an unconstitutional law itself.

Legal scholars have chronicled the demise of the jury's right to decidequestions of law; however, instead of analyzing whether this demise was war-ranted given that such a practice was commonplace at the time of the adoptionof the Constitution and was arguably a part of the Founders' conception of thejury, scholars have instead focused on the practical circumstances that brought

272 See Callender, 25 F. Cas. at 256-57; United States v. Morris, 26 F. Cas. 1323, 1331-33

(C.C.D. Mass. 1851).273 Morris, 26 F. Cas. at 1333.

274 See Calender, 25 F. Cas. at 255-56.

275 See AMAR'S BILL OF RIGHTS, supra note 11, at 99.

276 See supra Part IH.A-B; see also 3 THOMAS JEFFERSON, THE WRITINGS OF THOMAS

JEFFERSON 71 (H.A. Washington ed., 1861) (writing that trial by jury is "the only anchor ... bywhich a government can be held to the principles of its constitution.").277 See AMAR's BILL OF RIGHTS, supra note 11, at 93.

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about the change.278 Moreover, rather than question the propriety of the demiseof the right, scholars seem to suggest that it was an inevitable result of the matu-ration of American society. 279 According to scholars, one of the factors thatinitially contributed to colonial juries deciding issues of law was that judges hadlittle formal legal training and the written law was not readily available.280 Asthe nineteenth century progressed, the legal profession became more profession-alized and the law became more complicated, and thus there was less desire forjuries to decide questions of law.281 Simultaneously, the distrust of judges pre-sumably waned in the nineteenth century, lessening the need for juries to protectthe citizens from judicial abuses.282

While the aforementioned theory provides a practical explanation forwhy the jury's right to decide issues of law declined in the nineteenth century, itimplicitly assumes that the distribution of authority in the early courts was aresult of convenience or happenstance, rather than a deliberate choice to give thejury the right to decide issues of law. History shows that Founders with as dis-parate beliefs as Hamilton and Jefferson acknowledged that the jury's right todecide issues of law was tied to its functions as a protector against governmentaloppression; 2

83 to suggest that the jury's right to decide issues of law had no rela-

tionship to the Founders' broader conception of the jury is simply a mistake.Even if legal concepts became more complicated in the nineteenth century, thatcircumstance alone should not preclude a jury from hearing a case. The Foun-ders did not envision a courtroom in which the jury would listen to evidence andmake legal determinations on their own; instead, the judge was to play an inte-gral role in educating the jurors on the law and providing them with the tools torender informed verdicts.2 4

Furthermore, the aforementioned theory relied on the fact that citizenswere less distrusting of judges in the late nineteenth century than at the time ofthe Founding. Even if that fact is accepted as true, it does not negate the factthat the Founders thought the jury to be such a vital institution because of itsability to act as a check on governmental power. Just because the public opin-ion of judicial officers was generally higher in the late nineteenth century does

278 See, e.g., Howe, supra note 24, at 614-16; Brief History, supra note 5, at 915-20; Pepper,

supra note 21, at 639-40; Middlebrooks, supra note 26, at 408; Harrington, supra note 55, at 435-36.279 See Brief History, supra note 5, at 917 (suggesting that the increase in the technical nature

of the law, more extensive commercial transactions, and increase in efficiency in democraticlawmaking in the nineteenth century may have accounted for a decrease in the need for juries todecide issues of law).280 See Harrington, supra note 55, at 378-79; Brief History, supra note 5, at 917.281 See Brief History, supra note 5, at 915-17; Pepper, supra note 21, at 639-40.

282 Pepper, supra note 21, at 639-40.

283 See supra Part II.B.284 See supra Part UI.B (analogizing the role of the jury to a lower branch in a bicameral judici-

ary, with the judge informing the jury of the pertinent law on the subject).

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not mean that there were no longer any biased judges on the bench.285 Indeed,the Founders did not necessarily think that the majority of judges were prone toabuses of power; instead, they wanted the jury to have the right to decide issuesof law to protect against the decision of a rogue judge.286

Another predominant theory espoused by scholars is that the narrowingof the role of the jury, including the right to decide issues of law, was due inlarge part to the drastic change in the composition of the jury pool. 287 Underthis theory, as the jury pool became more diverse and inclusive, the beliefs heldby the jury members likewise became more heterogeneous, and consequentlythe verdicts became less uniform.288 As popular faith in the jury declined, the

289judge interceded to provide uniformity and continuity.While on its face this theory may go far in explaining the demise of the

right of the jury to decide issues of law, it raises many more questions about theimpact of race, gender, and socioeconomic status on the narrowing of jury'srights. 290 An in-depth discussion of these issues is beyond the scope of this Ar-ticle,29' but the resolution of any of these issues is not relevant to whether thenarrowing of the jury's right to decide issues of law comports with the Foun-ders' conception of the jury. The Founders thought of the jury as a majoritarianinstitution-an arm of the popular government.292 That the jury pool was be-coming more "diverse" only meant that it was a more accurate representation ofthe people. While it is understandable that judges might want to limit the abilityof the jury to use its power to subvert unpopular legislation,293 to wholly takeaway the jury's right to decide issues of law strips them of the power needed toneutralize equally oppressive judicial action.

Scholars have paid considerably less attention to analyzing the denial ofthe right to jury review in the nineteenth century, perhaps because courts rarelyacknowledged the right to jury review in the first instance. Nevertheless, somescholars have argued that the need for the jury to decide the constitutionality oflaws diminished once a truly democratic legislature was in place to ensure thatonly constitutional statutes were enacted. 294 This explanation is flawed, how-

285 In fact, one could argue that the judges who made decisions enlarging their own control over

verdicts at the expense of juries were precisely the kind of biased judges of which the Founderswere concerned.286 See supra Part III.B.287 See Brief History, supra note 5, at 916; Changing Role, supra note 10, at 191-92; Pepper,

supra note 21, at 640; Harrington, supra note 55, at 435-36.288 See Harrington, supra note 55, at 435-37; Brief History, supra note 5, at 916.

289 See Changing Role, supra note 10, at 191-92, Harrington, supra note 55, at 437.

290 See generally Brief History, supra note 5, at 876-901 (describing the changing composition

of the jury).291 For more information about this topic, see generally id. at 876-901.

292 See supra Part III.A.

293 See AMAR'S BILL OF RIGHTS, supra note 11, at 103.

294 Howe, supra note 24, at 615-16.

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ever, for it does not account for why judges still have the power to decide theconstitutionality of laws; if a democratic legislature could be trusted to alwayspass constitutional laws, judicial review would also be unnecessary.

In a related vein, some scholars have theorized that the jury's right todecide issues of law and the constitutionality of laws is part of the "recurringcycle of rejection and return to law. 295 Roscoe Pound asserted that there aremoments in history when "more or less reversion to justice without law be-comes necessary in order to bring the administration of justice into touch withnew moral ideas or changed social or political conditions. 296 During this rever-sion, new legal rules are developed, and over time the rudimentary forms ofjustice are replaced by more uniform judicial action that is governed by the newrules.297 It has been argued that late colonial America was one such revolution-ary moment in which there arose a belief that the common man, through hisservice on the jury, was able to understand legal and constitutional principles

29and apply them to administer justice.29 Once the growth in the body of law wascomplete, more specific legal rules developed, and the need for the jury to de-cide issues of law diminished.299

The "recurring cycle" theory raises the point that there may be timeswhen the traditional methods for administering justice will not be sufficient tomeet the growing needs of society. However, it would be difficult, if not impos-sible, to predict when such a revolutionary moment will occur, and thus the "re-curring cycle" theory might warrant the recognition of the right to jury reviewso that the jury can send a signal to the other branches that constitutional reformis needed.3° In fact, it could be argued that the right of the jury to decide theconstitutionality of laws is more important than the right to decide issues of lawthat do not have constitutional implications, because of the need to act in theface of such a revolutionary moment. Indeed, an examination of the types ofcases in which the right of the jury to decide the constitutionality of laws wasimplicated (for example, the Alien and Sedition Act3°land the Fugitive SlaveAct 30 2) lends support to the idea that such cases were potentially revolutionarymoments in which the jury needed to have such a right.

Neither the judicial opinions denying the jury's right to decide questionsof law nor the scholars' analysis of the phenomenon fully considered how thatright fit in with the Founders' conception of the jury. According to the Foun-


296 Roscoe Pound, Justice According to Law, 13 COLUM. L. REv. 696, 699 (1913).

297 See id. at 696-706; Harrington, supra note 55, at 438-39; Brief History, supra note 5, at

918-20.298 Harrington, supra note 55, at 439.

299 Id. at 439-40.

300 See Magliocca, supra note 22, at 216.301 See United States v. Callender, 25 F. Cas. 239 (C.C.D. Va. 1800).302 See United States v. Morris, 26 F. Cas. 1323 (C.C.D. Mass. 1851).

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830 WEST VIRGINIA LAW REVIEW [Vol. 111

ders, the rights of the jury to decide questions of law and the constitutionality oflaws formed an essential part of the jury's arsenal to combat governmental op-pression and provided it with the tools to be a central figure in the administra-tion of justice and democracy as a whole. Limitations of these rights-whetherin the name of uniformity in the interpretation of laws, the greater expertise ofthe judiciary, or the protection of citizens against potential unjust actions byjuries-are not in accordance with the Founders' conception of the jury at thetime of the adoption of the Constitution and Bill of Rights, and thus they arearguably unconstitutional under Article 1H and the Sixth and Seventh Amend-ments as a deprivation of the right to trial by jury.

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